Twitter, defamation and “serious harm” – David Rolph

Twitter may well be the “Wild West” of social media. Certainly, anyone who has spent even a little time on it will be aware that there are a lot of people out there with most decided views who are willing to share them, frequently and stridently.

Although all that uninhibited speech might give the impression that it is a lawless space, Twitter, like other social media platforms, is subject to the law of defamation.

It is unsurprising that, as modes of communication change; as social media platforms like Twitter, proliferate; are used by ordinary people; and set political, social and media agendas, that there will be an increasing number of defamation cases arising from them.

The recent decision of Mr Justice Warby in the High Court of Justice in Monroe v Hopkins is the latest instance of Twitter defamation.

Jack Monroe (left) a left-leaning food blogger and writer, brought defamation proceedings against high profile and controversial right-wing columnist, Katie Hopkins (right).

Monroe sued in relation to two tweets, which the judge found conveyed the meaning that Monroe “condoned and approved of scrawling on war memorials, vandalising monuments commemorating those who fought for her freedom”.

Hopkins did not raise any positive defence, but denied that the tweets conveyed the meanings contended for by Monroe and denied that they were defamatory of her.

The other argument relied upon by Hopkins was that the tweets did not meet the “serious harm” threshold for defamation under the Defamation Act 2013 s 1.

Hopkins had apparently confused Monroe with journalist and New Statesman columnist, Laurie Penny.

In response to questions on Twitter, Penny had tweeted that she did not have a problem with graffiti on the Memorial to the Women of WWII in Whitehall, which had occurred during an “anti-austerity” demonstration held shortly after the 2015 general election.

Monroe sought an apology and a donation to a charity from Hopkins. Hopkins blocked her on Twitter and did not engage with her offer, so Monroe commenced proceedings.

The Twitter spat between Monroe and Hopkins was widely reported, in, amongst other places, The Huffington Post, The Daily Mirror, The Independent, The Belfast Telegraph, The Metro and Gay Star News.

Mr Justice Warby set out the relevant principles under English law for the ascertainment of defamatory meaning, which are broadly the same as those under Australian law.

His Lordship noted that the principles had developed and been refined in relation to print publications, like books, newspapers and magazines, and had been extended to “static online publications”.

The dynamism and interactivity of Twitter as a medium meant that care had to be taken when applying those established principles.

Mr Justice Warby emphasised the conversational nature of the medium, the great importance of an impressionistic approach to meaning for Twitter and the significant role context played, both in relation to matters of general knowledge and to things learned from Twitter itself as the user scrolled through his or her feed.

The precise ambit of the latter aspect of context was teased out by Justice Warby and included material such as an earlier tweet or reply which might be available to the ordinary, reasonable reader as part of a wider Twitter conversation.

As a working test, his Lordship suggested that material “sufficiently closely connected in time, content, or otherwise” could be included as part of the Twitter context of a given defamatory tweet.

How this context will be construed will require some exploration in subsequent cases. Justice Warby’s own judgment in Monroe v Hopkins suggests a preference for avoiding construing this aspect of context too broadly and too vaguely.

In terms of the readership of the tweets, which might be relevant to the context and thus the defamatory meaning to be ascribed to the tweets, Justice Warby was unable to characterise the readership.

Unlike newspapers or current affairs program, which might be characterised as tabloid or serious-minded, tweets are not amenable to such ready classification.

A related and interesting aspect of Mr Justice Warby’s judgment is that it contains an appendix titled “How Twitter works”.

Towards the beginning of his judgment, the judge states that, as an online news and social networking service, Twitter is “widely used and very well known” but that the details of how it actually works are not.

As such, his Lordship finds that he cannot take judicial notice of how Twitter works. Fortunately, the parties agreed to the relevant facts as to how Twitter works.

In terms of assessing whether the tweets were defamatory of Monroe, Justice Warby applied the test of whether they would have the tendency to lower Monroe in the estimation of “right-thinking people generally”.

This somewhat moralistic construction of the ordinary, reasonable reader has fallen into disfavour in Australia, following the High Court’s decision in Radio 2UE Sydney Pty Ltd v Chesterton.

In relation to the “right-thinking people” test, Mr Justice Warby (pic) observed that:

“It also covers left-thinking people, and those in the middle. In a diverse society, there are many with views of which some people approve and some disapprove. The demands of pluralism in a democratic society make it important to allow room for differing views to be expressed, without fear of paying damages for defamation.”

Nevertheless, his Lordship was able fairly readily to conclude that the tweets were defamatory of Monroe.

Given that criminal laws are expressions of a society’s shared vales and that “right-thinking people” disapprove of those who commit criminal offences, Justice Warby reasoned that “right-thinking people” would also disapprove of those who endorse criminal behaviour.

Having found that the tweets were defamatory, Mr Justice Warby then turned to the live issue of serious harm.

The developing “serious harm” jurisprudence in English defamation law is instructive for Australian defamation practitioners.

Although now embodied in statute, the “serious harm” threshold has its origins at common law.

In Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985, Mr Justice Tugendhat reviewed the relevant authorities on the tests for what is defamatory and concluded that the common law tests always included a threshold of seriousness before a case could be actionable.

The common law and statutory approaches under English law have been designed to filter out trivial defamation cases at the outset.

This is in contrast to the approach under Australian defamation law, where the defence of triviality arises after liability has been determined, if it arises at all.

The defence of triviality then may not as effective as the “serious harm” threshold under English law in dealing with trivial defamation claims.

The English approach, though, is not without its problems. The particular form of the statutory “serious harm” test has arguably abrogated the presumption of damage, by necessary implication – a matter currently being tested in a case before the English Court of Appeal.

It is not clear whether the drafters of the legislation were conscious that that would be the effect of the Defamation Act 2013 s 1(1).

If a “serious harm” test were to be introduced by statute in Australia, care would need to be taken about its precise form.

Of course, it would always be possible for Australian courts to consider a threshold of seriousness without the need for a statutory test.

Thus far, there appears to be no Australian case in which Mr Justice Tugendhat’s judgment in Thornton v Telegraph Media Group Ltd has been considered.

Twitter defamation cases may be instances where a plaintiff is unlikely to be able to establish serious harm to reputation.

The harm may be ephemeral, given the transient and conversational nature of the medium, or not seen by many followers.

However, Mr Justice Warby was willing to find that Hopkins’ tweets did serious harm to Monroe’s reputation.

It was sufficiently serious, though not the most serious or gravest aspersion that could be cast against a person’s reputation.

Hopkins has signalled her intention to appealed against the decision, particularly in relation to the “serious harm” point.

Twitter defamation cases will no doubt increase in the future.

Whether all of them will be sufficiently serious to warrant the use of limited court resources to deal with them is questionable.

Australian law should not only grapple with how the established principles of defamation law apply to social media publications but also with the issue of whether more effective mechanisms need to be develop to filter out trivial defamation claims at the outset.

Dr David Rolph lectures in media law at the University of Sydney Law School. He is the author of Reputation, Celebrity and Defamation Law (Ashgate 2008) and the co-author of two editions of Media Law: Cases, Materials and Commentaries. Australia (Oxford University Press, Australia 2010 & 2015). His fourth book is Defamation Law (Thomson Reuters, Australia 2015).

This report was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.