Supreme Court Offers New Guidance on Libel in the Age of Social Media

In 2012, Mrs Stocker wrote a series of Facebook posts to her ex-husband’s new partner, describing Mr Stocker’s history of domestic violence.  In one of these posts, Mrs Stocker that Mr Stocker “tried to strangle me”.  Little did she know that seven years later the Supreme Court would be ruling on these 4 words, with the judgment in Stocker v Stocker [2019] UKSC 17 offering the latest guidance on how to ascertain a “single meaning” in the context of a defamatory statement made on social media.

Defamation Recap

For those readers who have not yet studied defamation (which incorporates both written libel and oral slander) or who want a recap, this area of law is now governed by the Defamation Act 2013.  Under Section 1 of the Defamation Act: “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”

Before deciding whether a statement causes serious harm and is thus defamatory, the Court will first attempt to ascertain the “single meaning” of the statement in question.  The leading case describing the method for ascertaining a single meaning is the Court of Appeal’s decision in Jeynes v News Magazines Ltd [2008] EWCA Civ 130 in which Sir Anthony Clarke MR laid out the following eight principles:

“(1) 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 nondefamatory 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 …’ (see Eady J in Gillick v Brook Advisory Centres approved by this court [2001] EWCA Civ 1263 at para 7 and Gatley on Libel and Slander (10th ed), para 30.6). (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.’ Neville v Fine Arts Co [1897] AC 68 per Lord Halsbury LC at 73.”

Once the Court has decided on the single meaning of the statement, if it is deemed to have caused serious harm to the claimant, the defendant may then attempt to rely on a series of defences.  These include proving that the statement was true, that it was their honest opinion, or was a publication on a matter in the public interest.  Since the single meaning essentially “draws the battle lines” for the remainder of the case, it is one of the most hotly contested aspects of a defamation case and can often be the subject of a preliminary issues hearing.

The Lower Courts

The dispute centered on the meaning of the words “he tried to strangle me” in Mrs Stocker’s Facebook post.  Mr Stocker claimed that they meant that he had deliberately tried to kill his ex-wife.  This was both defamatory and untrue – at the time of this incident, neither Mrs Stocker nor the police had accused Mr Stocker of attempted murder.  In her defence, Mrs Stocker claimed that the words meant he “had violently gripped her neck, inhibiting her breathing so as to put her in fear of being killed”.  This was still defamatory but it was also true – there was police evidence that Mr Stocker had violently gripped his ex-wife’s neck.

In the High Court, Mitting J referred to the two OED definitions of “to strangle”: (a) to kill by external compression of the throat; and (b) to constrict the neck or throat painfully.  Ignoring the third principle from Jeynes set out above, he then set out the following “over-elaborate analysis” of the meaning of the words:

“If the defendant had said ‘he strangled me’, the ordinary reader would have understood her to have used the word in the second sense for the obvious reason that she was still alive. But the two Facebook comments cannot have been understood to refer to ‘trying’ to strangle her in that sense because, as she said, the police had found handprints on her neck. These could only have been caused by the painful constriction of her neck or throat. If understood in that sense, she could not have been taken to have said that the defendant had tried to strangle her because he had succeeded. The ordinary reader would have understood that the defendant had attempted to kill her by external compression of her throat or neck with his hands and/or fingers.”

This ruling was upheld by the Court of Appeal.

The Supreme Court Ruling

The Supreme Court judgement delivered by Lord Kerr overturned this meaning.  Lord Kerr focused on the sixth principle in Jeynes that when attempting to ascertain how an ordinary, reasonable reader would interpret the words, attention must be given to the context in which the publication in question was made.  In this case, the publication was a Facebook post.

Lord Kerr stated that Facebook is “a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre-eminently one in which the reader reads and passes on” and also that “Readers of Facebook posts do not subject them to close analysis. They do not have someone by their side pointing out the possible meanings that might, theoretically, be given to the post.”

He ruled that Mitting J had made an error in law when he had relied on dictionary definitions and close analysis of the text, something a reader of the original post would never have done.  In light of this ruling, it fell to Lord Kerr to find the correct meaning for the statement:

“I return to the ordinary reader of the Facebook post. Such a reader does not splice the post into separate clauses, much less isolate individual words and contemplate their possible significance. Knowing that the author was alive, he or she would unquestionably have interpreted the post as meaning that Mr Stocker had grasped his wife by the throat and applied force to her neck rather than that he had tried deliberately to kill her.”

Since Mrs Stocker could prove that this meaning was substantially true and thus rely on the truth or “justification” defence as it used to be known, she ultimately prevailed over her ex-husband.

Takeaways

This case shows the importance of establishing the single meaning in libel cases.  Out of context, the two different meanings espoused by Mr and Mrs Stocker do not look particularly different – certainly neither painted Mr Stocker in a favourable light.  However, this slight difference was enough to allow the defendant to establish the truth defence.  The case also shows that the context in which a publication is made is extremely important and a social media post will be treated differently to a print publication or other online source.