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knowledge 19 September 2019 |

Defamation and Social Media - the ordinary, reasonable tweeter

The UK Supreme Court considered the test for meaning in the social media age.

Central to any claim for defamation is the determination of the meaning to be attributed to the words complained of.  Because language can be ambiguous and context can change the impression words make, the courts in Ireland and the UK use the standard of an ordinary, reasonable reader to assist in attributing meaning to words prior to deciding whether the meaning assigned is defamatory.  

In the recent UK Supreme Court case of Stocker v Stocker1 the Court considered whether social media as a casual means of communication brings with it a different type of ordinary, reasonable reader?

Facts

The parties to the appeal were formerly married.  Their marriage had been tumultuous and had ended acrimoniously.  Mr Stocker (the plaintiff/respondent) subsequently started a relationship with another lady, Ms Bligh.  In the course of a Facebook exchange with Ms Bligh, Mrs Stocker (the defendant/appellant) made a post which read, in reference to Mr Stocker, “he tried to strangle me”. 

Mr Stocker issued proceedings claiming that Mrs Stocker’s Facebook post would be understood by readers to mean that he had tried to kill her.  Mrs Stocker denied this and argued that the words meant that Mr Stocker had violently gripped her neck, inhibiting her breathing so as to put her in fear of being killed.

High Court and Court of Appeal

In the High Court, Mitting J relied chiefly on the Oxford English Dictionary definition of the verb to strangle and found that the meaning of Mrs Stocker’s Facebook post was that Mr Stocker had tried and failed to kill her.  Although physical evidence of the alleged strangulation did exist, Mitting J found that it did not amount to an attempt to kill. Accordingly, he held that Mrs Stocker’s defence of justification was not made out and found for Mr Stocker.

On appeal to the Court of Appeal Mrs Stocker was again unsuccessful, the Court found no error in law in Mitting J’s decision.

The Supreme Court

In the Supreme Court, Lord Kerr honed in on Mitting J’s use of a dictionary to inform him as to the meaning of the words.  This he said was a “legal error” which did not amount to a “realistic exploration of how the ordinary reader of the post would have understood it”.

Lord Kerr considered that the context of the words, appearing in a Facebook post, to be highly significant:

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.

And the question of how a social media user would interpret a post:

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. Anyone reading this post would not break it down in the way that Mitting J did … .

Consequent on a finding that Mitting J had erred in law the meaning attributed to the post was replaced by that contended for by Mrs Stocker and her defence of justification was successful.

Comment

The Stocker decision is arguably a sensible development of the standard of the ordinary, reasonable reader given the imprecise nature of social media communication.  The ubiquity of social media as a means of communication would tend to suggest that it will be a decision of great import.  Whether or not it is followed in this jurisdiction, where the ordinary, reasonable reader standard is used, remains to be seen.

  1. [2019] UKSC 17.

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.