On 7 November 2023, Master Bell handed down judgment in the High Court of Justice of Northern Ireland in the case of O’Neill v Carson (Defamation) [2023] NIMaster 9. Prominent Northern Irish politician, Michelle O’Neill was unsuccessful in her damages claim against Mr John O’Neill for an alleged defamatory Facebook comment he made about Ms O’Neill stating “She will be put back in her kennel”.
Background
On 30 April 2021, the Defendant Mr John Carson, a former DUP councillor posted the offensive and misogynistic comment beneath one of his own Facebook posts. His original Facebook post was a pre-digital age style leaflet indicating his support for the DUP politician Edwin Poots. Beneath the photo of the leaflet, one commenter had posted “that doll there has lead[sic] the DUP for many a year unchallenged”, to which Mr Carson replied: “She will be put back in her kennel”.
On 8 February 2022, the Plaintiff Ms O’Neill, issued a writ against Mr Carson claiming that the words were defamatory. No appearance was filed to defend the writ, and Ms O’Neill subsequently obtained default judgment against Mr Carson. The case before Master Bell concerned damages sought under Order 37 of the Rules of Court of Judicature.
Judgment
Damages
In considering damages, Master Bell dealt with the purpose of damages in a defamation action as outlined in John v MGN Limited [1997] QB 586.
“The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused.” [5]
Master Bell highlighted that within Northern Island, the approach to assessing damages is similar as outlined in Foster v Jessen [2021] NIQB 56. The award of general damages is intended to serve three functions: “To act as a consolation to the plaintiff for the distress the plaintiff suffers; to repair loss to the plaintiff’s reputation; and as a vindication for the plaintiff’s reputation” [7]. Importantly, “vindication is an aspect of the award so that if the allegations should re-emerge, the damages must be large enough to proclaim the baselessness of the libel” [7].
Vindication may also be reached if the defendant issues an apology or a categorical statement acknowledging the falsity of the statement. In assessing general damages for defamation, a court may take into account the plaintiff’s status and reputation, the mode and extent of the publication, the conduct of the publisher and any injury to the plaintiff’s feelings as a result of the defamatory statement.
The natural and ordinary meaning
Citing Lord Bridge in Charleston v News Group Newspapers [1995] 2 AC 65, Master Bell emphasised that in order to determine the natural and ordinary meaning of the words of which a plaintiff complains, one must consider the context in which the words were used and the mode of publication [8].
In this case, the statement was made as a comment underneath a Facebook post of Mr Carson’s indicating his support for Edwin Poots as a DUP candidate. In response to another person’s comment, Mr Carson had replied, “She will be put back in her kennel”.
Counsel for Mr Carson made no submission that the post was not defamatory, while counsel for Ms O’Neill provided several arguments on the extent of the comment’s defamatory nature, referencing the zoomorphic nature of the statement and the Plaintiff’s considerable distress, hurt and embarrassment.
Master Bell rejected Ms O’Neill’s counsel’s argument that he should accept the meaning asserted in Ms O’Neill’s statement of claim unless he find the words “wildly extravagant or impossible” (referencing the decision in Hills v Tabe [2022] EWHC 316 (QB)) as he deemed the applicability of Civil Procedure Rule Part 12.12 relevant in England and Wales, but not in Northern Ireland where there is no equivalent [30].
Accordingly, in considering the oral evidence and surrounding context, Master Bell found that the natural and ordinary meaning of Mr Carson’s words was that ‘She is a bitch and we will get her under control’ [35].
Free speech
Master Bell flagged the importance of legitimate free speech, especially in cases where a politician alleges defamation by another politician.
Considering the permissibility of political speech, Master Bell quoted the European Court of Human Rights in the case of Lingens v. Austria (1986) 8 E.H.R. 407: “The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual” [39].
While Mr Carson did not raise any free speech argument; Master Bell concluded that even if he had, it would have been rejected on the basis that the comment went beyond “genuine political debate” [40].
The threshold of seriousness
Master Bell reflected upon two notable cases, Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 and Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985. Jameel introduced a procedural threshold of seriousness to be applied to the damage to the claimant’s reputation. “The damage must be more than minimal” [43]. Thornton clarified (as was also discussed in Sim v Stretch [1936] 2 All ER 1237) that “exhibitions of bad manners were not to be placed on the same level as attacks on character” [45].
Master Bell stated that he “thought long and hard about whether or not to strike out Ms O’Neill’s action in the light of this jurisprudence and came close to doing so” [46]. Ultimately he deemed it would be inappropriate to strike out the action because counsel for Mr Carson had not submitted any argument on the Jameel threshold of seriousness.
“Although the point was not argued before me, there was a significant possibility that a robustly argued application might have been successful.” [46]
Was the post defamatory?
In colourful reasoning, Master Bell observed that Ms O’Neill is a politician of considerable stature while Mr Carson is a “political Lilliputian”[51].
“… Mr Carson is probably unknown except to friends and family outside Mid-Antrim. If his name was mentioned to them, national and international politicians would probably ask, “Who’s he?” Without being unkind to him, he is a political non-entity on the national stage, never mind the international stage.” [51]
“In their respective careers therefore, Ms O’Neill is a star in the political firmament at which Mr Carson can only gaze upon from his earthbound location.” [53]
Master Bell asserted that Ms O’Neill struggled to provide evidence that her reputation was damaged, in fact media coverage had the opposite effect – clearly favouring her, over Mr Carson.
“… I consider that, on any reasonable interpretation of the meaning of the words used, Mr Carson’s post falls short of being defamatory. It has had no adverse impact on Ms O’Neill’s reputation, either in the local community or internationally. In my view no president or prime minister, nor any member of the public, will think of her reputation in reduced terms as a result of it. To return to the words of Sir Thomas Bingham in John v MGN Limited which I referred to earlier, the impugned post did not touch on Ms O’Neill’s personal integrity, professional reputation, honour, courage, loyalty or the core attributes of her personality. Hence it was abusive and misogynistic but not defamatory and therefore falls into the category of “mere vulgar abuse”. In the light of this conclusion I am obliged to rule that no award of damages is payable to Ms O’Neill in respect of it.” [61]
In considering damage to feelings, Master Bell held that even if Ms O’Neill’s feelings had been hurt by Mr Carson’s Facebook post, he could not award damages for hurt feelings alone in the absence of finding her reputation had been damaged [64].
Costs and a warning
In assessing costs, and considering a variety of factors including – the abusive nature of the post, the Plaintiff’s risk in initiating litigation and the assessment of damages – Master Bell departed from the normal rule and made no order as to costs.
Master Bell highlighted that there are litigants before the High Court who are suing for child sexual abuse, gross medical negligence and catastrophic road accidents.
“…When the court’s time is taken up with cases involving disputes between politicians involving insults which one imagines are sometimes heard in school playgrounds or outside pubs on Saturday nights, then serious cases of the type I have mentioned inevitably suffer delay. This is undesirable and not in the public interest. These kind of minor cases should not be the subject of High Court proceedings.” [75]
Master Bell emphasised that the purpose of proceedings is not to provide a mechanism to achieve societal change [76] or punish an offender for misogynistic speech [77].
“I realise that the plaintiff, and perhaps many other women in Northern Ireland, will be disappointed with this decision because they want Mr Carson punished for his petty, misogynistic comment. But the inconvenient legal truth is this: this court does not have the function of punishing him. All it has jurisdiction to do is to award Ms O’Neill compensation for any damage done to her reputation and, if such damage is found to have occurred, to provide further compensation for the hurt to her feelings. There was no evidence offered to me that her reputation was damaged and indeed I do not believe that there was any such damage…The only person whose reputation was damaged by the Facebook post at issue was Mr Carson.” [78]
Comment
This case serves as a caution to those seeking to use defamation proceedings to achieve symbolic victories in the name of social change. In cases where the threshold of seriousness, nor defamatory meaning cannot clearly be established, plaintiffs should think twice before seeking to use the courts to instigate (or even represent) cultural change.
Moreover, while Ms O’Neil was unsuccessful in her claim, this should not be interpreted as a victory for Mr Carson. As Master Bell observed, “He paid a very real price for his stupid and offensive remark” [79]. The remark cost him his house, his job and his dignity. Master Bell asserted that Mr Carson “committed political suicide”[79]. The judgment concluded with a lesson on karma.
“… the lesson to the public from this incident is manifestly clear. By all means use social media to post pictures of your children, grandchildren, holidays and pets. Share the wonderful or sorrowful experiences of your life with your friends. But if you start to comment on other people in an abusive and possibly defamatory way and they decide to take legal proceedings against you, you may end up losing your job, losing your house, and being made bankrupt. Everything you worked for can be lost because of a reckless comment made in a moment of anger.” [80]
Floyd Alexander-Hunt is an LLM candidate at Queen Mary University London and a research assistant at King’s College London.
Common sense prevails.
A fair assessment by Master Bell.
It amazes me in this day and age the level that politicians stoop to, local or otherwise, on their playground tactics/insults.
“When you have nothing constructive to say, say nothing”. Furthermore, for someone to take the time and employ solicitors lodging a claim on such trivial matters also says a lot about this individual….As I said in my opening comment, commonsense previals.
Commonsense prevails