Defamation in the Digital Age

Today’s ruling should be seen as a warning to all social media users. Things can be held to be seriously defamatory, even when you do not intend them to be defamatory and do not make any express accusation.”

This was the comment Sally Bercow made after receiving the judgement in her defamation dispute with Lord McAlpine. For those not familiar with the case, Sally Bercow, the wife of the current Speaker of the House of Commons, was taken to court by Lord McAlpine over a tweet which he alleged was defamatory.

Bercow tweeted: “Why is Lord McAlpine trending? *Innocent face*” shortly after a Newsnight report which wrongly implicated the former Conservative Party treasurer in historical allegations of sex abuse at a children’s home. As Bercow’s comment above indicates, the Judge found in McAlpine’s favour.

If Bercow’s comment accurately reflected the way judges handle libel cases which concern posts on social media, it would be real cause for concern. Implicit in her remark is the suggestion that all social media users could come under equal scrutiny from the law.

However, to speak of “social media” like this, as if it were a single platform, is to simplify the issue enormously. It is well known that different discourses and etiquettes are used across social networks. The profiles, purpose and intention of social media users also varies enormously, depending on whether they have public, private or commercial profiles.

Increasingly, the outcomes of defamation cases show that judges do grasp these distinctions. In particular, the outcome of a recent case in the UK Supreme Court shows that judges are taking a more refined view of the nuances of social media usership in defamation cases.

 

Stocker v Stocker

The recent case of Stocker v Stocker was a defamation case between a former husband and wife, concerning a comment made on social media. In an exchange on Facebook in 2012, after their marriage had ended, Mrs Stocker cautioned Mr Stocker’s new partner about his behaviour during the time they were married, describing a specific incident using the words: “Last time I accused him of cheating, he spent a night in the cells, tried to strangle me.”

Mr Stocker chose to pursue an action for libel over this comment, claiming that the use of the word “strangle” was being used to imply that he had attempted to kill her by strangulation. Mrs Stocker denied that her words implicitly carried that meaning. She claimed that, in speaking about incidents of domestic violence such as this one, the words do not always signal an intention to kill, but can indicate that her husband grabbed her neck with enough force to make her fear that he could kill her.

Initially, the High Court agreed with Mr Stocker. Mitting J, the trial judge, referred to the Oxford English Dictionary’s definition of the verb, “strangle”. This definition offered two possible meanings: (a) to kill by external compression of the throat; and (b) to constrict the neck or throat painfully.

Mitting made a logical, though narrowly focused, conclusion: that the statement meant that Mr Stocker had either tried to kill his wife, or that he had tried to constrict her neck painfully. As it was acknowledged that he had succeeded in constraining her neck painfully, Mitting inferred that Mrs Stocker’s comment could only sensibly be intended to mean that her husband had attempted to kill her.

This ruling was later overturned by the Supreme Court in a judgment which shows an insistence upon reading Mrs Stocker’s comment through the eyes of “the ordinary reasonable” reader of a Facebook post. Though, perhaps a little unhelpfully, the language of the judgement refers to “social media users” in collective terms, it implicitly recognises that some users treat platforms like Facebook as an online space where they can interact with others as they would if they were speaking face to face, i.e. spontaneously and without considering the manifold implications of every word.

 

Implications

The Supreme Court’s decision in Stocker was praised by anti-domestic violence activists for the consideration it took of the circumstances around the Stockers’ marriage. Arguably, the Supreme Court’s judgement represents a welcome legal landmark because of the clarity with which it considers the Defendant’s use of social media as a conversational medium and the likely mindset of its readership. A similar rationale was used in Sally Bercow’s case: the judgement referenced the fact that she had over 56,000 followers on twitter on the date she posted the defamatory tweet, showing that there was awareness of the nature of social media usership and the specifics of Bercow’s profile applied to the judgement.

Both of these cases underline the importance of considering the nuances of social media’s usership and how people actually use the platforms, both in deciding the outcome of defamation cases and speaking about online activity more generally. It is vital to achieving just outcomes in defamation cases that judges assess the nature of each defendant’s social media presence individually to ensure that the outcome accurately reflects the impact of the statement in question. It is encouraging that recent judgements have shown movement in this direction.

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