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9.04.19

Supreme Court considers social media defamation: context is everything

Some practitioners were surprised that Stocker v Stocker [2019] UKSC 17 reached the country's highest court.  The appeal concerned the meaning (or imputation) of words in a libel action.  At first blush this apparently factual dispute might not have seemed to be a matter of any particular public importance, taking into account the Supreme Court's busy workload and that the meaning found by the first instance judge had already been upheld by a specialist libel judge in the Court of Appeal.  Not so.  The judgment handed down by the Supreme Court on 3 April 2019 has provided practitioners, social media users and prospective litigants with food for careful thought, and may offer considerable assistance to those accused of online defamation.

The succinct 22-page judgment contains two very clear messages to lawyers and litigants: (1) don't be overly analytical and (2) context is everything.  The latter is particularly true in the online world, where large swathes of the population plug themselves into Twitter, Facebook etc shortly after they rise, erect their virtual soapboxes and tweet, post, share etc their thoughts on Brexit, Jeremy Corbyn, football, their neighbours, former spouses and anything else that crosses their minds.  In the midst of this mishmash of "conversations", where there's more talking than listening, the Supreme Court has dared to say what many 'real worlders' have long suspected: that in many instances, not much thought is going into what people publish on social media, and, more significantly for libel, that readers recognise this and don't always take what has been written as being literal - or at least no more than they would if they were putting the world to rights down the Dog and Duck.

Background

The Claimant, Ronald Stocker, and Defendant, Nicola Stocker, were husband and wife.  They divorced in 2012.  The ending of their marriage was particularly acrimonious.  On 23 December 2012 an exchange took place on Facebook between Mrs Stocker and Mr Stocker's new partner Deborah Bligh (Mrs Stocker having "reached out" to Ms Bligh on Facebook).  During this exchange Mrs Stocker made a number of allegations, including "He tried to strangle me".  Other allegations were that Mr Stocker had threatened his former wife, had been arrested on three occasions, had issues relating to gun ownership and had breached a non-molestation order.  The allegations were visible to 21 individuals with authorised access to the page, in addition to 110 of Ms Bligh’s friends and to their Facebook friends.  Mr Stocker sued for libel.

High Court

Mr Stocker's case was that the words published meant that he had tried to kill Mrs Stocker and that he was a dangerous man.  Mrs Stocker disputed the meaning pleaded by Mr Stocker, asserting that the words bore a lesser meaning, namely that they would be understood to mean that her husband had violently grabbed her neck, inhibiting her breathing so as to put her in fear of being killed.

The defendant pleaded justification (i.e. that the allegations were true or substantially true).  In March 2003 there had been a domestic incident in which Mr Stocker had placed his hands tightly around the defendant’s throat.  The defendant had managed to escape and call the police.

Mitting J preferred the claimant's meaning.  In reaching his decision, the judge had consulted two dictionary definitions to "confirm the meaning in ordinary usage of a single English word": (a) to kill by external compression of the throat, and (b) to constrict the neck or throat painfully.

Turning to the alleged facts, Mitting J accepted that police officers observed red marks on Mrs Stocker's neck two hours after the incident.  He found that "...the most likely explanation about what happened is that [Mr Stocker] did in temper attempt to silence [Mrs Stocker] forcibly by placing one hand on her mouth and the other on her upper neck under her chin to hold her head still..."  However, significantly (given his decision on meaning) he found that "...His intention was to silence, not to kill...I do not believe he was capable, even in temper, of attempted murder.”  Mitting J held that the other allegations, that the claimant had committed common assault, had been arrested three times and had been made subject to a non-molestation order were broadly accurate. but were not enough to justify the allegation that the claimant was a dangerous man.

In finding for the Claimant, Mitting J stated "...The impression given by the postings to the ordinary reader was a significant and distorting overstatement of what had in fact occurred."  He concluded that Mr Stocker's reputation had been damaged and, although there were only a small number of recipients of the publication, he was entitled to damages of £5,000 (which Mr Stocker chose to waive).

Court of Appeal

Mrs Stocker appealed.  Permission was granted and an appeal, principally focused on meaning, was heard by Sharp and McFarlane LJJs and Sir John Laws.

In her judgment (Stocker v Stocker [2018] EWCA Civ 170), Sharp LJ remarked "...that the use of dictionaries does not form part of the process of determining the natural and ordinary meaning of words, because what matters is the impression conveyed by the words to the ordinary reader when they are read, and it is this that the judge must identify.  As it happens however no harm was done in this case."   She went on to hold "...the judge, as he then said, merely used the dictionary definitions as a check, and no more; those definitions were in substance rival ones contended for by the parties, and in the event, the judge's ultimate reasoning, not dependent on dictionaries, was sound."

The appeal was dismissed.

Supreme Court

Mrs Stocker appealed again.  The appeal was considered by Lord Reed, Lord Kerr, Lady Black, Lord Briggs and Lord Kitchin.  Lord Kerr delivered the judgment, with the Court unanimously finding in favour of Mrs Stocker.

The Supreme Court rejected Sharp LJ's findings that Mitting J had merely used a dictionary as check.  It noted that at the outset of the trial the judge had raised a "preliminary opinion" about meaning and suggested that counsel look at the Oxford English Dictionary definitions.  It held that rather than using them as a "check" (a word not used in his judgment or exchanges with the lawyers), that the judge had considered these definitions as the only possible meanings or, at the very least, a starting point for analysis.

The Supreme Court was quite clear that use of a dictionary was impermissible and that, further still, this step had caused the judge to confine the possible meaning of the statement to two stark alternatives and that the fact that Mrs Stocker had said that her husband had "tried" to strangle her precluded the possibility of her statement being taken to mean that he had constricted her neck painfully.  This had led to an anomalous result.

In his judgment Lord Kerr SCJ summarised the "single meaning rule" (whereby a Court must determine a single defamatory meaning), noting that it had been criticised by some for its artificiality (where there was possibly more than one meaning to the words complained of), but that it provided a practical, workable solution in defamation claims.  Neither party sought to displace the rule.  Lord Kerr SCJ then went on to set out how the Court should approach its determination of meaning, citing Sir Anthony Clarke MR's well-known guidance in Jeynes v News Magazines Ltd & Anor [2008] EWCA Civ 130:-

"The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve, but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking, but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any ‘bane and antidote’ taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation …’ ... (8) It follows that ‘it is not enough to say that by some person or another the words might be understood in a defamatory sense.’ ..."

Lord Kerr SCJ referred to the rider that Sharp J had added to the second criteria in Elliott v Rufus [2015] EWCA Civ 121:-

"...To this I would only add that the words ‘should not select one bad meaning where other non-defamatory meanings are available’ are apt to be misleading without fuller explanation. They obviously do not mean in a case such as this one, where it is open to a defendant to contend either on a capability application or indeed at trial that the words complained of are not defamatory of the claimant, that the tribunal adjudicating on the question must then select the non-defamatory meaning for which the defendant contends. Instead, those words are ‘part of the description of the hypothetical reasonable reader, rather than (as) a prescription of how such a reader should attribute meanings to words complained of as defamatory’"

Applying this guidance to the context in which words are published, Lord Kerr SCJ remarked, "...And this highlights the court’s duty to step aside from a lawyerly analysis and to inhabit the world of the typical reader of a Facebook post. To fulfil that obligation, the court should be particularly conscious of the context in which the statement was made..."  

The Court held that it was unwise to search a Facebook post for its theoretical or logically deducible meaning.  The search for meaning should reflect the fact that Facebook is a "casual medium" in the nature of a conversation rather than a carefully chosen expression.  Lord Kerr SCJ referred to the observations of Warby and Nicklin JJs in Monroe v Hopkins [2017] EWHC 433 (QB) and Monir v Wood [2018] EWHC 3525 (QB) respectively (both "twibel" cases), about the need to adopt an "impressionistic approach" when determining the meaning of tweets.  Perhaps more significantly, Kerr L referred to the remarks of Eady J in Smith v ADVFN Plc & Ors [2008] EWHC 1797 (QB) a case which concerned the publication of allegations of internet bulletin boards:-

"14… Particular characteristics which I should have in mind are that they are read by relatively few people, most of whom will share an interest in the subject-matter; they are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or ‘give and take’.

...

16...People do not often take a ‘thread’ and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it.”

As noted by solicitor Oliver Cox in his analysis of Stocker, insofar as social media publications are concerned, the Supreme Court has effectively created a sub-category of the "reasonable reader".  This is explained at paragraph 41 of the judgment:-

"The fact that this was a Facebook post is critical. The advent of the 21st century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read."

Taking the above into account, and substituting its own meaning, the Supreme Court held that the ordinary reader of the post would have interpreted the words complained of as meaning that "Mr Stocker had grasped Mrs Stocker by the throat and applied force to her neck".  Based on Mitting J's findings at trial, the Supreme Court was satisfied that this new meaning was substantially true.  In the circumstances, the appeal was allowed, the claim succeeded and Mr Stocker was ordered to pay Mrs Stocker's legal costs of the claim and the appeals.

Comment

The Supreme Court's remarks regarding context might seem obvious, but cannot be overstated.  Lawyers, particularly non-specialists, are often at fault here - for being overly analytical or simply asserting a strained/exaggerated meaning.  As this case demonstrates, everything can turn on meaning because it is the meaning that must be shown to be true.  It is nearly always in a claimant's interests to try and establish the highest possible meaning, making it harder for a defendant to succeed with a defence of truth.  However, "gilding the lily" at an early stage (for example in a letter of claim) can result in a claimant pursuing the wrong case - perhaps one where the Court will water the meaning down to something the defendant can establish as being true.  The lesson for claimants is be realistic about meaning at the outset, or at least be confident that the defendant will not be able to justify a lesser meaning.  This analysis may impact upon whether it is prudent to bring a claim in the first place.  From a defendant's perspective, Stocker is likely to be a 'go to' authority in social media defamation cases (although of course there will continue to be cases where seriously defamatory allegations on social media are found to have been taken at face value).  Finally, the case is an advert for an early determination on meaning.  Deferring this issue to trial, or worse still an appellate court, can incur considerable expense that one or both parties will have to pick up.  A sound early determination on meaning can often lead to productive settlement discussions.

The Supreme Court's observations about context must be equally applicable to the question of whether a particular publication on social media has caused serious harm to reputation or is likely to - a requirement of a defamation claim under section(1) of the Defamation Act 2013 and whether a claim might be an abuse of process on Jameel grounds (the publication in Stocker predated the inception of the Act, although an unsuccessful abuse of process of argument was run at trial).  The Supreme Court's message seems very clear: allegations made on social media will often not be taken as seriously as, say, those made in a newspaper.  It follows that the harm suffered will often be less serious.  The section 1 threshold may not be met.

On a potentially significant procedural side point, the Supreme Court slightly tweaked the existing guidance of Simon LJ in Bukovsky v Crown Prosecution Service [2017] EWCA Civ 1529 on when it was appropriate for an appellate court to substitute its view for that of a trial judge on the meaning of a claimed defamatory statement.

"As to whether the appellate task needs to be described as one requiring caution, as Simon LJ suggested, I am doubtful. I would prefer to say that it calls for disciplined restraint. Certainly, the trial judge’s conclusion should not be lightly set aside but if an appellate court considers that the meaning that he has given to the statement was outside the range of reasonably available alternatives, it should not be deterred from so saying by the use of epithets such as “plainly” or “quite” satisfied. If it was vitiated by an error of law then the appellate court will have to choose between remitting the matter or, more usually in this context, determining the meaning afresh. But if the appellate court would just prefer a different meaning within a reasonably available range, then it should not interfere."

These comments could have the effect of encouraging further challenges to meaning rulings.

Finally, five years after the abolition of the right to a jury trial (technically a party can still apply under section 11 of the Defamation Act 2013, but no-one has successfully done so yet), one cannot help but think that juries might do a better job than lawyers, judges and dictionaries at determining what the reasonable reader would understand words to mean.

 

Click here to find out how Brett Wilson LLP's defamation solicitors can help you if you have been defamed on social media or accused of defamation


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