Beware! Are your Facebook posts defamatory in nature?

“He tried to strangle me” – what meaning would you give to that statement? Would you give it a different meaning if you saw it as a comment on Facebook, as opposed to it being within a newspaper article? Would you split the sentence up and give it a meaning dependant on the definitions of the individual words or would you look at the statement as a whole without really thinking about the individual words?

This article will consider the Defamation Act 2013 and will explore defamation in relation to social media posts in light of the recent decision of Stocker v Stocker [2019] UKSC 17. It will look at that decision in detail, highlighting how the meaning of words should be interpreted within such cases in today’s modern society.

Background

Section 1 of the Defamation Act 2013 sets out that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the Claimant. Serious harm in relation to an individual is not defined but the act states that in relation to a body that trades for profit, harm is not serious harm unless it has caused or is likely to cause that body serious financial loss.

The Act further provides 6 defences to any claim for defamation, including:

  • The statement made is true
  • The statement made is of honest opinion
  • The statement made is of public interest

It was the defence of “truth” which was relied upon in Stocker: “that the imputation conveyed by the statement complained of is substantially true” (Section 2(1) of the act).

Section 2(3) goes on to state that if one or more of the imputations are not shown to be substantially true, the defence of truth does not necessarily fail if, having regard to the imputation(s) shown to be substantially true, the others shown not to be true do not seriously harm the Claimant’s reputation.

Stocker v Stocker [2019] UKSC 17

This was a case that revolved around postings on Mr Stocker’s new partner’s Facebook page by Mrs Stocker. In the exchange between the two, Mrs Stocker informed the new partner that Mr Stocker had tried to strangle her, had been removed from the house following a number of threats, that there were some “gun issues” and that Police felt he broke the terms of his non-molestation order. These statements formed the basis of Mr Stocker’s claim for defamation; with the allegation of strangulation at the forefront and the others providing context to that allegation with a picture painted of marital conflict.

High Court

Proceedings were issued in the High Court with Mr Stocker claiming that the statement that he had tried to strangle Mrs Stocker was defamatory of him. He claimed the meaning of that statement was that he had tried to kill her, with Mrs Stocker saying the meaning was that he had “violently gripped her neck, inhibiting her breathing so as to put her in fear of being killed” [para 5 of the judgment]. Mr Stocker also claimed that the allegation that he had made threats and breached a non-molestation order was defamatory and implied that he was a dangerous and disreputable man.

At the beginning of the High Court proceedings, Mitting J – the trial judge, suggested to the parties that they should refer to the Oxford English Dictionary definition of the verb “strangle”. The dictionary provided two meanings:

  • To kill by external compression of the throat
  • To constrict the neck or throat painfully

Mr Stocker gave evidence that he did not strangle Mrs Stocker but that he put his hand over her mouth to stop her shouting as their son was asleep. This occurred whilst he was stood on a chair or stool as Mrs Stocker was adjusting the length of a pair of trousers for him. Mrs Stocker stated in evidence that her husband alighted from the chair or stool, pushed her against a small sofa and put his hands around her neck and squeezed, causing her to believe that he would kill her. The Judge did not accept either of their accounts, finding that Mr Stocker placed one hand on Mrs Stocker’s mouth and one on her upper neck to hold her head still with an intention to silence, not kill. The Judge did accept the evidence that some two hours after the incident, police officers had seen red marks on Mrs Stocker’s neck.

Mitting J began his judgment on meaning by referring to the cases of Jeynes v News Magazines Ltd [2008] EWCA Civ 130 (“Jeynes”) and Rufus v Elliott [2015] EWCA Civ 121. Having considered these, Mitting J said he did not understand that either authority indicated that in order to confirm the meaning in ordinary usage of a single English word it was impermissible to refer to an authoritative English dictionary. He then referred to the two definitions set out above, concluding that the word “strangle” together with “trying” could not be given the second meaning as the police found marks on Mrs Stocker’s neck and so the statement must have meant that he was trying to kill her by external compression of the throat or neck.

The Judge further found that the inference from the statements, when taken together, was that Mr Stocker was dangerous, at least to any woman with whom he lived or had lived; as well as inferring that he was a man who tried to kill on one occasion, had been arrested for an offence involving firearms on another and had given the police reason to believe he had broken a non-molestation order against him. The Judge held that to describe him as such was defamatory.

Mrs Stocker pleaded truth as a defence but the Judge found that the parts proved did not meet “the sting of the postings that the claimant [Mr Stocker] was a dangerous man” and that the impression given by the postings was one that was a significant and distorting overstatement of what had occurred.

Court of Appeal

In the Court of Appeal judgment, given by Sharp LJ, it was made clear that the use of dictionaries does not form part of the process of determining the natural and ordinary meaning of words because what matters is the impression conveyed by the words to the ordinary reader when they are read. However, Sharp LJ found that in this case no harm was done by use of the dictionary definitions as they were used as a “check” and so the Judge’s reasoning, not dependant on dictionaries, was sound.

Supreme Court

Lord Kerr gave judgment in the Supreme Court, with whom Lord Reed, Lady Black, Lord Briggs and Lord Kitchin agreed. Lord Kerr’s judgment states that Mitting J confined the possible meanings of “he tried to strangle me” to two stark alternatives, either Mr Stocker tried to kill his wife or he had constricted her neck or throat painfully. Further, Mitting J had concluded that through the use of the word “tried”, the second meaning was precluded. Lord Kerr found that this approach produced an “obviously anomalous result” [para 16].

Of the Court of Appeal decision, it was said that Mitting J had suggested the dictionary definitions before having heard any arguments about the meanings and that contrary to Sharp LJ’s view, the Judge was not using them as a cross-check. The definitions were regarded as a comprehensive list of the possible meanings of the statement.

Lord Kerr went on to say that the meaning is to be determined according to how it would be understood by the ordinary reasonable reader. The meanings given by Mitting J had meant that ‘try’ must have meant to try and fail, which is not how the word is commonly used. The example given was saying “I tried to regain my breath”, which would not be taken to mean that you tried and failed to recovery respiratory function.

The case of Jeynes and Rufus v Elliot were considered with the touchstone remaining as “what would the ordinary reasonable reader consider the words to mean” [para 37]. The context in which the statement was made was highlighted as important; the Judge who needed to interpret the meaning of a Facebook post or a Tweet needs to keep in mind the way such posts or tweets are made and read. Various case law was cited with social media being seen as a conversational medium where it would be wrong to engage in elaborate analysis. People scroll through Facebook or Twitter quickly; they do not ponder on the meaning of a statement.

The Supreme Court concluded that Mitting J fell into legal error by relying on the dictionary definitions of the verb “strangle” meaning he did not explore how the ordinary reader would have understood the post. Anyone reading the post would not have spilt it down in the way Mitting J did and due to the error of law, the decision of meaning made by Mitting J could not stand. It then fell to the Supreme Court to interpret the meaning with it being found that the post would be interpreted as meaning that Mr Stocker grasped his wife by the throat and applied force to her neck, rather than he tried to kill her. If Mr Stocker had tried to kill Mrs Stocker, why would she not have simply said “he tried to kill me”?

The Court then turned their attention to Mrs Stocker’s defence and Section 5 of the Defamation Act 1952 (now replaced by Section 2(3) of the Defamation Act 2013 but the Facebook comments having been made in 2012). It was beyond dispute that Mr Stocker grasped his wife’s throat so tightly that red marks were visible by police officers 2 hours after. Further, it was not disputed that he breached the non-molestation order and neither was it denied that he did had made threats. Mitting J had applied meaning to the statement that Mr Stocker was arrested on numerous occasions, in the context of the other statements, as representing Mr Stocker as a danger to any women with which he might live; the Supreme Court did not agree with this additional dimension.

It was found that Mrs Stocker’s defence of justification should not fail by reason that the truth of every charge was not proved, having regard to the truth of what had been proved and so Mrs Stocker’s appeal was allowed with the costs of all hearings to be borne by Mr Stocker (subject to submissions of Counsel).

Conclusion

The case highlights the importance of being careful about what you write on social media as once the comment is out there; action could be taken. Mrs Stocker’s case succeeded as she could justify her comments due to the truth of some of them, however, if that was not the case her defence would have failed.

Defamation cases look at the meaning that would be given to statements by the “ordinary reasonable reader” and that should be borne in mind; as something that means one thing to you, may not have the same meaning generally. Whilst you may not wish to pick your posts apart to the level of detail above – it would be wise to be cautious and mindful of what you are posting before you post!