In the case of Monir v Wood ( EWHC 3525 (QB)) Mr Justice Nicklin held that a former chairman of UKIP’s Bristol branch was liable for a defamatory message posted on its Twitter account because the author of the tweet was acting as his agent.
Steve Wood had delegated the operation of the Twitter account to then vice-chairman John Langley, and it was no answer for him to say that Mr Langley had breached instructions he was given not to publish racist, xenophobic or defamatory material, said Mr Justice Nicklin.
In addition, Mr Wood had not immediately deleted the offending message, which meant he was liable for its continuing publication for the period after he became aware of it and until he himself deleted it after being contacted by police.
The judge’s findings come in a case in which Labour Party supporter Zahir Monir sued Mr Wood over a tweet Mr Langley had posted on the Bristol branch Ukip account on the evening of May 4, 2015, a few days before that year’s General Election.
The message carried a photograph of Sarah Champion, the Labour MP for Rotherham, together with two men – one of them Mr Monir – and text reading: “Sarah champion labour candidate for Rotherham stood with 2 suspended child grooming taxi drivers DO NOT VOTE LABOUR“.
Mr Monir sued Mr Wood for defamation – he initially included Mr Langley as a defendant on the claim form, but then made the “tactical decision” that he was not worth suing whereas Mr Wood was.
The judge awarded Mr Monir £40,000 in damages and costs, and said in his judgment:
“It needs to be stated clearly: Mr Monir is completely innocent. He has been seriously libelled. He has been forced to fight a libel claim all the way through to trial with every single conceivable point being taken against him.“
One of the major issues in the case was whether Mr Wood was responsible for the May 4 tweet posted by Mr Langley.
Mr Justice Nicklin held that he was, because Mr Langley was acting as his agent at the time he posted the defamatory tweet.
There were, the judge said, “very few authorities” bearing directly on the issue of liability for publication of a defamatory statement by an agent, as opposed to an employee.
The oldest, and clearest authority was Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Company of Australia Ltd ((1931) 46 CLR 41, 50). The case was cited in the most recent edition of Bowstead and Reynolds on Agency (21st edition, 2017) as authority for the proposition that
“the principal is liable for the actions of the agent when the function entrusted is that of representing the person who requests his performance in a transaction with others, so that the very service to be performed consists in standing in his place and assuming to act in his right and not in an independent capacity”.
Other cases, including Gros v Crook ((1969) 113 SJ 408) and Citizens Life Assurance Co Ltd v Brown ( AC 423) appeared to support that approach.
Mr Justice Nicklin went on:
“The authors of Bowstead suggest that: ‘a person should be liable in respect of all tortious statements, whether in deceit, negligence, defamation or injurious falsehood, made by his agent (not being a servant) in the course of representing him, provided that the statement made was within a category which the agent had actual or apparent authority to make’.”
In another Australian case, Sweeney v Boylan Nominees Pty Ltd ((2006) 226 CLR 161), a personal injury claim, the court had considered the rationale for the principles derived from Colonial Mutual Life and reached two conclusions.
First, Colonial Mutual Life established that if an independent contractor was engaged to solicit the bringing about of legal relations between the principal who engaged the contractor and third parties, the principal would be held liable for slanders uttered to persuade the third party to make an agreement with the principal.
Second, the conclusion reached in Colonial Mutual Life that the party engaging an agent (albeit as an independent contractor) to solicit for the creation of legal relationships between that party and others was liable for the slanders uttered in the course of soliciting proposals, stood wholly within the bounds of the explanations proffered by Pollock [Essays in Jurisprudence and Ethics, 1882, at 122] for the liability of a master for the tortious acts of a servant.
Mr Justice Nicklin said the defendant in Colonial Mutual Life was liable for the slanders of the agent which were incidental to his primary function of soliciting business for the firm.
In this case the defamatory publication of the May 4 Tweet was part of the essential function of the task delegated to Mr Langley – posting material on the campaigning social media platforms for Mr Wood, who had left it to Mr Langley to decide what to include.
In both Colonial Mutual Life and Gros v Crook the agent was engaged under a contract and paid for his work.
The judge asked:
“Is that a necessary requirement? In my judgment, it is not. There is no need for a contract or payment. A person can act as an agent on an ad hoc basis (or as a ‘servant without remuneration’) if he is given a task to perform and is doing the principal’s work for him: Hewitt v Bonvin at 192 per Mackinnon LJ. It is the delegation of performance of a task by the principal to someone to act on his behalf that gives rise to the liability on the basis of agency: at 195 per Du Parcq LJ.”
The Sweeney case established that the conduct of which complaint was made must have been undertaken in the course of, and for the purpose of, executing the task that the principal had delegated to the agent, Mr Justice Nicklin went on.
“What if the agent acts beyond the authority given by the principal? In my judgment the authorities make clear that, in relation to liability for defamatory publications of the agent, where the agent has been delegated the task of sending out publications on behalf of the principal, it is no answer if the agent breaches an instruction given by the principal not to publish certain material.“
That principle emerged clearly from Colonial Mutual Life and was supported in other cases.
The judge said that in his judgment Mr Langley was quite clearly acting as Mr Wood’s agent when he was posting material, including the May 4 tweet, on the Bristol Ukip Twitter account for a number of reasons:
- Mr Wood set up the Bristol UKIP Twitter account – it was registered to his e-mail address, and he retained effective control over it practically, because he could change the password at any time, and by dint of his authority as Chairman of the Bristol branch;
- From May 2014, Mr Wood delegated control and operation of the account to Mr Langley. As the branch’s campaign manager, Mr Langley was given the task of posting material on behalf of Bristol UKIP generally, and, as a candidate standing for election in 2015, Mr Wood specifically. The campaigning function had been entrusted to Mr Langley. It was readily understood and accepted by the Bristol branch generally, and Mr Wood specifically, that Mr Langley would be using his own judgment as to what to Tweet or publish via Bristol UKIP’s social media channels. Mr Langley was, as he said in evidence, “left to his own devices”.
- One of the campaigning platforms was to seek to highlight that the Labour Party controlled Rotherham Council when the child sexual exploitation scandal had taken place;
- There were no written guidelines as to what Mr Langley should post, but he understood that he had to exercise care as to what he published in Facebook and Twitter. Mr Wood had given Mr Langley and others a standing instruction that no-one was to make racist or xenophobic attacks;
- Notwithstanding that instruction, at least in February and March 2015, Mr Langley had posted racist material on behalf of Bristol Ukip. Mr Wood was not aware of this because he had not enforced his prior approval instruction and did not monitor Mr Langley’s social media output – even becoming aware that Mr Langley had posted material on a website which he regarded as racist;
- The decision not to remove Mr Langley – or even at that late stage to enforce the instruction that he had to seek prior approval for tweets- was taken because it was politically expedient. Mr Wood was prepared to tolerate whatever risk Mr Langley presented because he did not want to lose his campaigning services at a critical stage prior to the election;
- Mr Wood could have chosen to retain – or regain – personal control over postings on Bristol Ukip’s social media channels in support of his candidacy in the election, but instead was content to delegate the task entirely to Mr Langley;
- The May 4 tweet was published by Mr Langley, not on his own account, but in discharge of his role as campaign manager and in the course of, and for the purpose of, executing the task delegated to him by Mr Wood;
- Mr Wood could not escape liability because Mr Langley acted against the general prohibition on publishing material which was an attack on others – he was acting within the scope of the job delegated to him by Mr Wood.
Mr Justice Nicklin added that he had reached his conclusion on agency without considering the election law authorities, but said they were entirely consistent with the conclusion that Mr Langley was acting as Mr Wood’s agent. “Although Mr Langley was not Mr Wood’s nominated election agent, he would nevertheless comfortably fall within the definition of an ‘agent’ under election law,” he said.
Hearings: April 16-20 and July 3-5; Decision: December 19
Julian Santos, instructed by Penningtons Manches LLP, for the claimant; David Hirst, instructed by Humphreys & Co, for the defendant.
This report originally appeared on the online subscription service Media Lawyer and is reproduced with permission and thanks.