On 3 April 2019 the Supreme Court gave its judgment in Stocker v Stocker [2019] UKSC 17. The five Supreme Court judges (Lord Reed, Lord Kerr, Lady Black, Lord Briggs and Lord Kitchin) unanimously overturned the 12 February 2018 Court of Appeal decision given by Lady Justice Sharp, Lord Justice McFarlane and Sir John Laws ([2018] EWCA Civ 170).

The Supreme Court’s decision has been widely reported in the press due to the underlying facts of the case; a wife who posted about her husband’s violent actions on social media, only to be sued by that husband who alleged that her posting falsely suggested he had attempted to kill her. The reporting suggests that this decision (which turned entirely on the meaning of her posted words, “he tried to strangle me”) represents a victory for abused women who are at risk of defamation proceedings by wealthier men if they speak out. This was certainly the stated view of Mrs Stocker after court. Given the underlying facts of this case, there can be little doubt that the Supreme Court’s decision will appear a just outcome in all the circumstances.

However, the decision and how it was reached also raise a number of points of interest for practitioners – and it certainly will not represent a rolling back of defamation law’s ability to respond to social media events. We now, instead, have endorsement from the highest court of a new sub-category of the “reasonable reader” for the social media age, and guidance on how the meanings such readers reach should be determined (spoiler warning: not through a dictionary). Furthermore, the Supreme Court has provided useful observations as to how and when the appellate courts should employ one of their weightiest powers in defamation – their ability to reject the defamatory meaning found at first instance, and substitute a new one.

Background

While it may seem surprising that this case had to go to the Supreme Court to get to this decision; this is a symptom of the need in libel law to find a single meaning that the statement will be said to bear.  As practitioner readers will know, the determination of the “single right meaning” can be so decisive in libel cases that recent years have seen an increasing number of trials of meaning as a preliminary issue, in an attempt to establish certainty and save time and costs. The point was well summarised in Mrs Stocker’s Grounds of Appeal, at paragraph 7:

The determination of meaning is often determinative of the outcome of the claim. If the meaning upheld by the court is materially more serious than that intended by the defendant a truth defence will not succeed even if the defendant can prove the truth of her intended meaning. […] If the meaning found by the court is not the right meaning, the result will be a serious and unjustified interference with the defendant’s right to freedom of expression and a false public vindication for the claimant.

The background facts of the case and its development though first instance and the Court of Appeal are summarised in a previous Case Preview published here. However, in brief summary:

  1. On 23 December 2012 Mrs Stocker published a Facebook posting in which she alleged that her former husband, Mr Stocker, had “tried to strangle me”.
  2. Mr Stocker sued for defamation, alleging that Mrs Stocker’s words would be understood to mean that he had tried to kill Mrs Stocker by strangulation (which, Mr Stocker said, was untrue and defamatory). Mrs Stocker contended that her words had a lesser meaning, that Mr Stocker had violently gripped Ms Stocker’s neck (which was true, therefore defensible by ‘justification’[1]). The outcome of the case therefore substantially turned on the all-important “single right meaning” (i.e. what the reasonable reader would have understood Ms Stocker’s words to mean).
  3. After consulting the OED and the two meanings of “strangle” given therein, the first instance judge (Mitting J) concluded the reader would not have understood Ms Stocker to be alleging that Mr Stocker had merely tried to compress her neck – because it was obvious she was alleging that he in fact had compressed her neck (leaving handprints on it). The single right meaning was that Mr Stocker had tried but failed to kill Ms Stocker by compressing her neck. He found that Ms Stocker’s words were a significant and distorting overstatement of the common assault that in fact occurred, and thus fell far short of establishing a successful defence of justification. On this basis, he held that Mr Stocker had been libelled ([2016] EWHC 474 (QB)).
  4. Ms Stocker appealed. However, the Court of Appeal dismissed the appeal, not only expressing the limits of its own jurisdiction to interfere with Mitting J’s finding but also approving Mitting J’s approach to establishing the meaning. Sharp LJ stated that:

“The issue is not whether we would have come to the same or a different conclusion had we been trying the case at first instance. That would be to usurp the judge’s function. […] The judge referred to and applied the correct principles of law, his reference to dictionaries, which was understandable in the circumstances, did not lead him into error, and in my opinion his decision as to meaning was one that was plainly open to him.”

The Supreme Court’s decision

The two issues the Supreme Court set itself to consider were:

  1. “Whether the judge erred in determining the meaning of the words complained of, contrary to material adduced by the appellant as to the usage of the words to which he should have had regard”; and
  2. “Whether the Court of Appeal erred in its approach to the standard of appellate review of the determination of meaning”

In fact the Supreme Court said nothing about the “material adduced by the appellant”. The focus was on Mitting J’s actions before either Counsel had even addressed him on meaning: he consulted a dictionary. The Court of Appeal largely side-stepped this matter, holding that Mitting J had “merely used the dictionary definitions as a check, and no more” and that “no harm was done”. Giving the Supreme Court’s decision, Lord Kerr did not mince his words: rejecting the Court of Appeal’s gloss on Mitting J’s actions, he found the first-instance judge

“fell into legal error by relying upon the dictionary definition of the verb “to strangle” as dictating the meaning of Mrs Stocker’s Facebook post, rather than as (as Sharp LJ suggested) a check. In consequence, he failed to conduct a realistic exploration of how the ordinary reader of the post would have understood it” [47]

In doing so, Lord Kerr set up the framework for the entire decision – indicating:

  • On the first issue, that an error of law had been found, and that meaning here must be determined contextually, and
  • That, since a clear error of law had been found, the Supreme Court did not need to directly engage with how reluctant an appellate court must be to reject a lower court’s finding of meaning and substitute its own – but relevant observations on the issue should still be made.

Meaning – in the social media age

It is not surprising that Lord Kerr castigated the inherent flaw in building from the two dictionary definitions of the verb “to strangle”, rather than taking the all words used together as a whole, and in context. What is striking is that he did not confine himself to doing so merely by reference to the archetypal “reasonable reader” who has replaced the jury. Instead he did so by reference to an explicitly twenty-first century sub-group, “a new class of reader: the social media user”. This “social media user” understands that a medium such as Facebook “is a casual medium in the nature of conversation rather than carefully chosen expression.”  In other words the social media user does not over-analyse and understands that others who post on social media do not always speak absolutely literally.

In taking this position, the Supreme Court has not only taken the opportunity to encourage judges and practitioners back to the general principles of Jeynes v News Magazines Ltd [2008] EWCA Civ 130, (where Sir Anthony Clarke MR made clear in para 14 that “over-elaborate analysis is best avoided” and “[t]he hypothetical reader is taken to be representative of those who would read the publication in question”), but also to convey its approval of the specific position taken in several recent High Court cases on social media (Monroe v Hopkins [2017] EWHC 433 (QB), Monir v Wood [2018] EWHC (QB)). Where people skim their feeds, draw fast inferences and move on, the law can and should approach the meaning of the words complained of from that “impressionistic” perspective.

Why did all this matter in this case? Because it made clear just how very wrong it was for the first instance judge (albeit, doubtless, with the best intentions) to set about determining the meaning a reasonable reader of this post would infer by looking in a book for what one word of a phrase could mean. Lord Kerr’s point is simple: that this is exact opposite of what the modern social media user actually does, and the court has a positive duty “to step aside from a lawyerly analysis and to inhabit the world of the typical reader of a Facebook post”.

For this reason, the first instance judge erred in law, his decision could not stand, and the Supreme Court was positively obliged to set about determining a new meaning.

A late substitution

What may also yet prove significant in defamation appeals to come is what Lord Kerr had to say regarding the vexed question of appellate courts substituting a new meaning for that found by a lower court. Sandwiched carefully between very clear statements that the Supreme Court was in this case altering the meaning solely as a result of an error of law, Lord Kerr nevertheless took the opportunity to review the case law on the circumstances in which an appellate court may otherwise review a meaning. He first emphasised, in para 58, the advantageous position of the first-instance defamation judge, in comparison to his commercial counterpart:

Of course, a reviewing court should be slow to disturb a finding of a trial judge as to the meaning of a claimed defamatory statement. This is mainly because it is a finding of fact, whereas the construction of a written contract is a question of law.

However, this said, he addressed the words of Simon LJ in para 39 of Bukovsky v Crown Prosecution Service [2017] EWCA Civ 1529. Simon LJ said that the appellate court:

should proceed cautiously before substituting its own views on meaning and only do so when satisfied that the judge is wrong, not least because meaning is very often a matter of impression, because experienced defamation judges are well practised at applying the relevant tests for determining meaning and because it is plainly undesirable for the Court of Appeal to  approach the issue on appeal simply on the basis that they might have formed a different view from the judge.

In response, Lord Kerr observed, at para 59:

As to whether the appellate task needs to be described as one requiring caution, as Simon LJ suggested, I am doubtful. I would prefer to say that it calls for disciplined restraint.

In calling for “disciplined restraint” rather than “caution”, the Supreme Court has sent a message indicating that the Court of Appeal should be slightly more ready to substitute in a new meaning. It is, unsurprisingly, a very narrow and guarded indication: and Lord Kerr was quick to again emphasise that “it is a legal error on the part of the judge that has opened the door to a redetermination of the meaning of Mrs Stocker’s words” and “if the appellate court would just prefer a different meaning within a reasonably available range, then it should not interfere”. Nevertheless, a distinction has been drawn – and it is a fractional loosening of the reins.

Final Observations

Regarding meaning in social media cases

The law is littered with fictitious persons:  this case has added another, the “social media user”, who does not read or process in the same way as his twentieth-century forebears. But it will be interesting to see how the actions of this new sub-class are to be predicted.

We see, at para 47, one possibly illuminating observation for the future: to describe the character of this “social media user”, Lord Kerr remarks that “They do not have someone by their side pointing out the possible meanings that might, theoretically, be given to the post.” This seems, to this writer, to be almost an inverted form of the “officious bystander” who haunts commercial litigation. In those cases, pernickety conditions such a character might suggest are implied, because they would have been met with an “of course!” by all contracting parties. Here, however, if it would take such an officious bystander to make a point, it is inherently suspect – since he is not in fact going to be present by the typical social media user’s side. A meaning point which might belong to him, standing by the user’s side (perhaps even holding  a dictionary), is a technical, artificial one which should fail.

One other point must be made. The UKSC’s guidance on meaning must apply equally in reverse – where a defendant seeks to advance an artificial lower meaning based on a technical/alternative reading, and the natural reading in its social media context is more serious, then that defendant’s artificial low meaning must be no refuge from a defamation claim. The advice for the social media user must therefore remain unchanged: “be careful in what you post”.

Regarding substitution of meaning

The Case Preview which this writer wrote in January doubted whether the Supreme Court would indeed take the bold step at which the relevant issue for determination (“whether the Court of Appeal erred in its approach to the standard of appellate review of the determination of meaning) hinted, and try to put an end to a sometimes inconsistent approach by the Court of Appeal to considering first-instance decisions on meaning. It did however appear possible that the Supreme Court intended to overtly disagree with the Court of Appeal’s cautious view of the circumstances in which it might overturn a first-instance decision on meaning. In the event, while there was a disagreement, it was a narrow and guarded one – and the cautious approach was explicitly retained. There will be no flood of defamation appellants seeking to try their luck under a new regime.

Oliver Cox is a Senior Associate at Carter-Ruck, specialising in media law matters and commercial dispute resolution.

[1] Ms Stocker’s 2012 Facebook posting preceded the coming into force of the Defamation Act 2013 and the replacement of ‘justification’ with s.2(3) of that Act.