Proving the extent of publication in Twibel claims

Since the first High Court Twitter libel trial of Cairns v Modi [2012] EWHC 756 (QB), the online platform has provided a fertile source of work for libel solicitors.  Indeed, in 2022, three of the most high-profile libel trials in England and Wales (Banks v Cadwalladr [2022] EWHC 1417 (QB), Wright v McCormack [2022] EWHC 2068 (QB), Riley v Sivier [2022] EWHC 2891 (KB)) all involved the publication of tweets alleged to be defamatory.   In nearly all defamation cases involving publications on social media, the parties disagree as to the actual extent of publication, which is relevant principally to the issues of serious harm and damages.  Such defamation disputes have tended to arise because precise viewing statistics for social media posts have not been available (or at least not easily accessible, particularly where the defendant has deleted the publication complained of).  In December 2022, however, Twitter announced that view counts for tweets were now visible for all users on iOS and Android devices and that they would be coming soon to the Web (which has now taken place).  With this change, can libel lawyers now say, with certainty, how many publishees have read a tweet?

How the Court previously ascertained the extent of publication on Twitter

In Monroe v Hopkins [2017] EWHC 433 (QB), Mr Justice Warby, as he then was, stated, with reference to assessing the extent of publication of a tweet, that:-

“Precision is of course impossible, but nor is it necessary. It is enough if I can make a sound assessment of the overall scale of publication.”

In previous ‘Twibel’ cases, the parties have had to rely on Twitter Analytics - insofar as they have been available - to show how many ‘impressions’ and ‘engagements’ a particular tweet received.  The number of ‘impressions’ is the number of times a tweet is generated on the screen of a viewer of the tweet who is active at the time, but as Warby J warned in Monroe, “this does not mean that the person on whose screen the tweet appeared actually read it”.  He added that the number of impressions “must be discounted to arrive at an estimate of readers” and accepted the discount of 60% - proposed by counsel for the claimant - to reach a figure for the total number of publishees.

View counts

Twitter explains that “view counts show the total number of times a Tweet has been viewed” and that “anyone who is logged into Twitter who views a Tweet counts as a view, regardless of where they see the Tweet (e.g. Home, Search, Profiles, etc.) or whether or not they follow the author. If you’re the author, looking at your own Tweet also counts as a view.”  The number of views is not available for ‘Community Tweets’, ‘Twitter Circle Tweets’ or ‘Older Tweets’.  The term ‘Older Tweets’ is understood to refer to tweets published prior to the introduction of the view count function.   The number of views can also be seen for each comment posted underneath a tweet and anyone on Twitter can access this information.

It is not entirely clear from the ‘about view counts’ explanation on Twitter’s Help Centre whether a ‘view’ is considered to be any different to an ‘impression’, which, as stated above, was already available to the relevant accountholder through Twitter Analytics.  Much of the online commentary on the change suggests that the two terms are synonymous.

The number of views for a particular tweet and/or comment can often be surprisingly high and can exceed the number of followers a particular Twitter user may have.  By way of example, Rishi Sunak, who at the time of writing has 1.8M followers on Twitter, posted the following tweet on 9 January 2023 (at 7.50am), in relation to the recent attempts by supporters of Jair Bolsonaro, the former president of Brazil, to undermine the democratic process in his home country:-

“I condemn any attempt to undermine the peaceful transfer of power and the democratic will of the people of Brazil. President  @LulaOficial and his government has the United Kingdom’s full support, and I look forward to building on our countries’ close ties in the years ahead.”

The fact that this tweet received some 3.1M ‘views’, nearly twice the number of the Prime Minister’s followers, may not necessarily come as a surprise given his role in public life, the topicality of the subject matter and the fact that the current president of Brazil, Luiz Inácio Lula da Silva, was ‘tagged’ in the tweet.   However, what is perhaps more noteworthy is that a Twitter user, with the handle ‘@BlueRoseCode’, who has just over 5,000 followers, posted a facetious comment underneath the Prime Minister’s tweet asking “You having a lie-in? No pun intended…” which has been ‘viewed’, according to Twitter, 24,300 times.

Commentary

To the ordinary Twitter user, the view count might only serve to reassure them that they are (hopefully) not tweeting into the abyss or to massage the egos of those who are bothered by the number of people who read the content they publish.  If it is correct that a ‘view’ is the same as an ‘impression’, the new function will not provide a definitive answer to lawyers seeking to ascertain the precise number of publishees, and thus it appears that a similar discount to that endorsed by the Judge in Monroe still ought to be applied.  Further, as the view counts do not enable a Twitter user to see in which jurisdiction a reader is based, there are still likely to be disputes between the parties as to the extent of publication in each of the countries in which a particular tweet has been read.   Estimates in this regard have previously been based on the percentage of followers that a defendant has in each jurisdiction, which can be discovered through Twitter Analytics (see, for example, Wright v Ver [2019] EWHC 2094).

Despite not seemingly providing a conclusive answer to the scale of publication in Twibel cases, the view function has a number of benefits for those seeking to bring libel claims:-

• The fact that the number of views of a tweet/comment can be seen by all Twitter users means that a claimant (and/or their solicitors) can obtain reliable information as to the extent of publication prior to bringing their claim.   Previously, a claimant would often have to wait until the disclosure stage of proceedings to obtain information pertaining to the extent of publication (as the most relevant information was available on Twitter Analytics, which only the defendant could access, and it can often be difficult to force disclosure of viewing statistics at a pre-action stage).  Now that the viewing figures are in the public domain, a claimant ought to be able to plead more easily the necessary ‘platform of facts’ to prove that substantial online publication has occurred and rely on such publication in support of their contention that the words complained of have caused, or are likely to cause, serious harm to their reputation within the meaning of section 1 of the Defamation Act 2013.
• The transparency vis-à-vis the viewing statistics also allows a claimant to guard against the risk of a defendant deleting the tweet, and thereby potentially losing the Twitter Analytics data, prior to a letter of claim being sent or legal proceedings being issued.  In Riley v Murray [2021] EWHC 3437, Mr Justice Nicklin did not consider that a defendant was open to any “legitimate criticism for the loss of the Twitter analytics data” following the deletion of a tweet prior to either of these steps being taken.  A screenshot or photograph of the tweet in question ought to suffice for the purpose of proving substantial publication.
• The viewing figures for the comments made underneath a tweet might help to increase the number of actionable statements. Previously, a defamation claimant who threatened a claim over a comment made underneath a tweet would invariably be told by the defendant’s solicitors that the publication was not substantial enough to warrant bringing a claim and/or that readers do not pay attention to such comments, often drawing on what Mr Justice Griffiths said about comments made on a Facebook group in the case of Webb v Jones [2021] EWHC 1618:-

“This was confused and confusing ephemeral internet chatter, down thread, and swiftly lost in the surrounding hubbub. It is exactly the sort of case that section 1 of the Defamation Act 2013 was designed to stop.”

Even after applying a significant discount to the number of views for the comment made by ‘@BlueRoseCode’ referred to above, to take account of the fact that not all viewers would necessarily constitute readers, it would still be difficult for a defendant to deny that the publication had been substantial and that many readers did in fact stop to read what they ‘@BlueRoseCode’ had written.

Whilst the introduction of view counts on Twitter might not reveal much information that a defendant could not already obtain through Twitter Analytics, the prominence with which such information is now displayed means that claimants can be more certain, prior to issuing a defamation claim, about the extent of publication and whether the game is truly worth the candle.

If you have been defamed or accused of defamation, our media and communications law solicitors can provide expert legal advice and representation. To request a consultation please send us an email, complete our online enquiry form or call us on 020 3733 1582.