Briefing

Twibel wars – Twitter is not “the wild west” in the eyes of the law

Posted by: Oliver Lock | Date posted : 31/03/2017

Last month, Mr Justice Warby handed down judgment in Monroe v Hopkins [2017] EWHC 433 (QB), the first libel case to consider the "serious harm" test under section 1 of the Defamation Act 2013 within the context of a social media post.

Food blogger and left-wing political activist Jack Monroe was successful in suing self-confessed 'rent-a-gob' journalist and former Apprentice contestant Katie Hopkins over two 140-character tweets posted in May 2015.

In a ruling that should caution against thinking of Twitter as the "Wild West" of journalism, where derogatory and libellous statements are fair game, the Judge awarded Ms Monroe £24,000 in damages plus costs (the full amount of which are to be assessed) for the tweets that he ruled were defamatory and had caused Ms Monroe serious harm.

Background

Political tensions were running high in May 2015. The Conservatives had won a surprise majority in the General Election. Demonstrators responded by holding 'anti-austerity' protests across London. It was during one of these protests that a memorial to the women of WWII was vandalised with the words 'F*ck Tory Scum' spray-painted across it. Laurie Penny (of the Twitter handle @PennyRed at the time), a columnist for the New Statesman, tweeted a photograph of the vandalism with the words "I don't have a problem with this. The bravery of past generations does not oblige us to be cowed today". This sparked a number of disparaging tweets sent to Ms Penny from Ms Hopkins.

It was not until 9 days later that Ms Hopkins posted a first tweet (the First Tweet) which mistook Ms Monroe for Ms Penny: "@MsJackMonroe scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom. Grandma got any more medals?" Ms Monroe replied: "I have NEVER 'scrawled on a memorial'. Brother in the RAF. Dad was a Para in the Falklands. You're a piece of sh*t". Ms Monroe then tweeted asking Ms Hopkins to delete the First Tweet, to issue a public apology and to donate £5,000 to charity. While Ms Hopkins deleted the First Tweet, no apology was forthcoming.

Instead, later that evening Ms Hopkins tweeted: "can someone explain to me – in 10 words or less – the difference between irritant @PennyRed and social anthrax @MsJackMonroe" (the Second Tweet), which was not deleted. After correspondence from her lawyer, Ms Monroe said she had no choice but to issue a claim for defamation against Ms Hopkins.

Serious Harm

Mr Justice Warby held the meaning of the First Tweet to be that Ms Monroe "condoned and approved of scrawling on war memorials [and] vandalising monuments commemorating those who fought for her freedom". Given the context of the First Tweet, the Second Tweet's meaning was based entirely on innuendo that Ms Monroe "condoned and approved of the fact that in the course of an anti-government protest there had been vandalisation by obscene graffiti of the women's war memorial in Whitehall, a monument to those who fought for her freedom".

In determining whether the tweets had defamatory tendencies that would lower Ms Monroe in the estimation of right-thinking people (i.e. the hypothetical reader of Twitter from all political leanings and who disapproves of those who condone criminality), the Judge held that right-thinking members of society "would regard [spraying graffiti on public monuments] as obnoxious behaviour" and it was immaterial that it was carried out to express a political viewpoint.

On the question of whether the tweets had caused, or were likely to cause, Ms Monroe "serious harm", the Judge held that they did because the tweets would "have a tendency to cause harm to this claimant's reputation in the eyes of third parties, of a kind that would be serious for her". The justification here is not immediately clear, but the Court will look at the extent of publication along with the nature of the allegations. It may be sufficient simply to rely on the fact that an allegation that has a defamatory tendency has been widely published or distributed in order to establish an inference that serious harm was actually caused.

In this case the Court seems to have taken a less stringent approach than it did in previous cases such as Cooke & Midland Hart v MGN [2014] EWHC 2831 (QB), in which it was held that serious harm could only be inferred in the most extreme of circumstances. While the allegations made against Ms Monroe were clearly serious, Mr Justice Warby conceded that they were "certainly not towards the top end of the scale" unlike, for example, allegations of paedophilia or terrorism.

Interestingly, the Court did not seem to place much direct emphasis on the fact that her pedigree was military. Her father was a decorated army soldier and one of her brothers was a Flying Officer in the RAF. While Ms Monroe claimed that she had received a "torrent of vile and abusive comments" following publication of the tweets, the Judge found there insufficient evidence to prove that the tweets had caused the "torrent" of comments.

In summary the Judge held that whilst Ms Monroe's reputation had not "suffered gravely", the two tweets did cause her reputation serious harm, although such harm was not "very serious".

Twibel

This is not the first defamation case to have been brought over a Twitter posting (as Sally Bercow will tell you). However, it is the first following the introduction of the new "serious harm" test in the Defamation Act 2013. As well as providing a warning to all those that use social media, the case throws up some interesting points:
• When assessing the impact of publication, consideration needs to be given to any hyperlinks, photographs and videos attached to a tweet as well as other tweets (from other users) that form part of the wider discussion on the topic.
• Given the short length of a tweet, the impression and impact that the tweet has on the reader is important. Any absence of evidence that a tweet was believed is not necessarily evidence of a lack harm caused.
• The Court rejected Ms Hopkins' argument that the tweets did not cause serious harm on the basis that they were only published to readers who would already have strong views on the Claimant either way. The Court found that fresh defamatory allegations can still cause serious harm and "can add to the list of reasons to revile [a Claimant]".

Comment

Despite the award of £24,000 made in this case, it is unlikely that it will 'open the floodgates' to many more social media libel actions. It was obviously material here that Ms Hopkins had hundreds of thousands of followers on Twitter and refused to back down even when Ms Monroe involved her lawyers at an early stage. In any event it has clearly been a salutary case for Ms Hopkins who as well as having to pay damages will have an expensive legal bill to pay. She has already been ordered to pay £107,000 on account of costs to Ms Monroe and last week the Court of Appeal refused to allow her permission to appeal the decision.

Regardless of the rights and wrongs of the litigation the clear lesson is that users need to be careful about adopting a laissez-faire attitude to their social media. Caution should be exercised and it may be best to take a deep breath before having a public swipe at a competitor or rival.

If you require further information on anything covered in this briefing please contact Oliver Lock(oliver.lock@farrer.co.uk) or your usual contact at the firm on 020 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, March 2017