Defamatory/Harrassing emails rcvd from a telecoms EE - vicarious liability for ER?

[Tricky]

EE = Employee, ER = Employer

Hello there


I've been trying to research this issue both widely online and here on the forum, but can't find a similar scenario.


In short, I've received a large number (44) of harassing emails, of which 3 or 4 were defamatory in respect of making serious (and unsubstantiated) accusations of theft against me.


The scenario is that this individual arranged to purchase some bicycle wheels from me (direct) from private individual to private individual and he bacs'd the money to my personal bank account. I sent the wheels by recorded delivery RM post and these appear to have failed to arrive according to the RM website, but I have fulfilled my part of the deal by sending them. (I obviously have the postal / tracking receipt).


I was in the process of trying to trace them and then submit a claim against Royal Mail for their loss when I began to receive the defamatory emails from the buyer - all of the email comms were sent through his employer issued email address at a major telecom.


As they have failed to arrive safely with him, he is now threatening me with a small claim action on the basis that I am responsible for their safe arrival under the "Distance Selling regulations" and the "Trade Descriptions Act" despite me being a private individual and not a company or trader. I have offered him the option to fully retract his defamatory accusations and provide an undertaking of no court action, upon receipt of which I will submit the claim to RM to recover as much of the loss as possible, otherwise I will make a formal complaint to the executive board of the telecoms company about his conduct and defamatory statements and make a claim for damages against them because of his conduct. I was hoping that he would not wish for his employer to be dragged into this with the inevitable difficulties that this may well cause him.


I could well do without the time, effort and aggravation required to defend any action and would be extremely grateful if anyone reading this could let me know their thoughts on the position of either/both parties in this dispute, and a good strategy to succeed?

Many thanks indeed for any responses.

[bluebottle]

Re: Defamatory/Harrassing emails rcvd from a telecoms EE - vicarious liability for ER

The matter between you and this neanderthal is a private matter as far as the matter of the wheels is concerned. The fact the abusive emails have been sent through an employer's email account is a matter for the neanderthal's employer as this might well amount to a breach of the employer's code of conduct. It is an offence per se to send any communication via a public electronic telecommunications network to another that is abusive, offensive, threatening, etc., under Section 127, Communications Act 2003.

Threatening to report the fact the neanderthal used his employer's email account to send the abusive emails to you might make him abate, but reporting him might, on balance of probability, be the best strategy.

[Tricky]

Re: Defamatory/Harrassing emails rcvd from a telecoms EE - vicarious liability for ER

The matter between you and this neanderthal is a private matter as far as the matter of the wheels is concerned.
.

Hi Bluebottle - many thanks for the reply, and I suspect that this will be my likely next step. Appreciated!

I have one question - if he were to ignore all of this and issue a small claim for the loss of the wheels regardless, what would be your view of the likely outcome? I.e. what do you think his chances of success at a county court would be?

[dicey1]

Re: Defamatory/Harrassing emails rcvd from a telecoms EE - vicarious liability for ER

I would say his chances appear to be slim as you fulfilled your part of the contract and RM was at fault. Did you advertise the sale though e-bay etc? If so did you have a disclaimer on the advert? You have appeared reasonable and have attempted to mitigate his loss. Don't get dragged into a slanging match and keep everything in writing. Good luck!

[Tricky]

Re: Defamatory/Harrassing emails rcvd from a telecoms EE - vicarious liability for ER

Hi dicey1

As it happens it was originally advertised on Ebay, but the buyer approached me direct to do a private sale - which is what we completed. It therefore has nothing to do with Ebay as far as the transaction is concerned, otherwise he'd be going through their dispute process for the item that didn't arrive (so he claims).

The nearest I've been able to get is a provision within the Sale of Goods Act, but am I right in thinking that this only applies to businesses / companies / traders and not private individuals that make a trade with each other?

[CleverClogs]

Re: Defamatory/Harrassing emails rcvd from a telecoms EE - vicarious liability for ER

As it happens it was originally advertised on Ebay, but the buyer approached me direct to do a private sale - which is what we completed. It therefore has nothing to do with Ebay as far as the transaction is concerned, otherwise he'd be going through their dispute process for the item that didn't arrive (so he claims).

The nearest I've been able to get is a provision within the Sale of Goods Act, but am I right in thinking that this only applies to businesses / companies / traders and not private individuals that make a trade with each other?

Yes.

However, he entered into a contract with you to buy the wheels you were selling and you agreed, on receipt of his payment, to send him the wheels. The payment was made and you sent off the wheels.

It seems that the wheels did not arrive at his address and, unless you can prove that the wheels were delivered, you are legally obliged to refund him.

[Tricky]

Re: Defamatory/Harrassing emails rcvd from a telecoms EE - vicarious liability for ER

It seems that the wheels did not arrive at his address and, unless you can prove that the wheels were delivered, you are legally obliged to refund him.

HI CleverClogs - many thanks for replying! This is the crucial bit... what makes me "legally obliged to refund him"? If I do, I'm both without cash and wheels!

[bluebottle]

Re: Defamatory/Harrassing emails rcvd from a telecoms EE - vicarious liability for ER

That's why you should claim from Royal Mail asap.

[Tricky]

Re: Defamatory/Harrassing emails rcvd from a telecoms EE - vicarious liability for ER

Thanks Bluebottle - but I still need to get to the nub of why I'm "obliged"? I don't know, and I need to make a decision one way or the other, but would really like something to hang my hat to say, "this is the reason why you have to do what your about to do to sort this out"....