One of the most common complaints about an online publication is that it makes a false statement about someone. The most obvious cause of action through which to seek redress is libel – although there may also be claims for a breach of the DPA and/or false privacy – but such a claim needs to be approached with care.
The law of libel is not directly concerned with whether statements of fact are false: the question is whether a false defamatory allegation referring to the claimant has been made.
Whether or not a statement is capable of founding a successful claim in libel depends on the meaning attributed to it by a judge. English law operates with a “legal fiction” to the effect that words have only one “true” defamatory meaning. Although this ignores the practical reality that different readers understand words in different ways, it is a central principle of law in this area.
When a complaint is made about a false statement the first thing to determine what is called the “meaning” of the words complained of or the “sting” of the libel. The general principles that apply to the determination of meaning are well established. They are summarised in Jeynes v News Magazines Limited ([2008] EWCA Civ 130 at [14]) as follows:
(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 non-defamatory 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…”….
(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”.
These principles apply to online publications in the same way as to “offline” publications. However, the court will take into account the context of publication. Words which are published on bulletins, blogs or social media have been held to be more akin to “slanders” and may be understood to be “vulgar abuse” and not to be taken seriously (see Smith v ADVFN plc [2008] EWHC 1797 (QB) [13] to [17]).
In addition, the nature of the audience for a particular publication is relevant when considering meaning. In the case of McAlpine v Bercow ([2013] EWHC 1342 (QB) [58]) the judge said that:
“The hypothetical reader must be taken to be a reasonable representative of users of Twitter who follow the Defendant.”
Other tweets posted by a defendant can, therefore, be taken into account in determining the meaning of a particular tweet.
In the recent case of Monroe v Hopkins ([2017] EWHC 433 (QB)) Warby J considered the application of the well-established rules on meaning to publications on Twitter. He noted that as Twitter is a “conversational medium” it would be more fitting and appropriate to take an “impressionistic approach” which must take account of the context in which the ordinary reasonable reader would read the tweet containing the words complained of. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter [35].
In Monroe the Judge went on to hold that a matter can be treated as known to the ordinary reader if, for practical purposes, everybody knows it or if it is part of the information conveyed by the tweet itself [37]. Furthermore,
“a matter can be treated as part of the context in which an offending tweet [is published] if it is on Twitter and sufficiently closely connected in time, content, or otherwise that it is likely to have been in the hypothetical reader’s view, or in their mind, at the time they read the words complained of” [38].
The application of this approach may well mean that what might appear to be a statement of fact would, in the context of online debate, be treated as containing an “element of metaphor” and thus conveying an opinion rather than a factual allegation (see Monroe [43] and the Canadian case of Baglow v Smith [2015] ONSC 1175).
Given the huge increase in the use of social media platforms to conduct debate (and to make allegations), the courts’ approach to analysing the meaning of online publications will be of considerable importance in the development of libel law for the digital age.
Hugh Tomlinson QC and Aidan Wills are members of Matrix Chambers and authors of Online Publication Claims: a Practical Guide.
This is an edited extract from Chapter 5 of the book which is published today.
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