The issues considered
FACTS
The appellant, Nicola Stocker, is the former wife of the respondent, Ronald Stocker. The marriage ended acrimoniously in 2012. Following that, Mr Stocker formed a new relationship with his current partner, Ms Bligh.
On 23 December 2012, an exchange took place between Mrs Stocker and Ms Bligh on Facebook. Mrs Stocker told Ms Bligh that Mr Stocker had “tried to strangle” her. Mrs Stocker also said that there were some “gun issues”, that the police felt that he had broken the terms of a non-molestation order and that Mr Stocker had been removed from the house after making a number of threats.
On the basis of these statements, Mr Stocker issued proceedings against Mrs Stocker for defamation.
In the High Court, Mitting J referred to the Oxford English Dictionary definitions of “strangle”: (a) to kill by external compression of the throat; and (b) to constrict the neck or throat painfully. As handprints had been found on Mrs Stocker’s neck, Mitting J concluded that Mr Stocker had succeeded in the painful constriction of the throat (definition (b)), so that the ordinary reader would understand that the ‘trying’ referred to an attempt to kill under definition (a).
LAW
Determining the meaning of words
The test is set out in Jeynes v News Magazines Ltd [2008] EWCA Civ 130:
(1) The governing principle is reasonableness.
(2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious… [he] 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.” Neville v Fine Arts Co [1897]
The context of social media in determining the meanings of words
The way in which words are presented is relevant to the interpretation of their meaning: Waterson v Lloyd [2013] EWCA Civ 136.
In this instance, the context was a Facebook post. The approach taken with another social media platform (Twitter) highlighted the speed with which such messages are both written and read, such that analysis of meaning should reflect that:
“this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet.” Monroe v Hopkins [2017] EWHC 433 (QB) per Warby J at para 35
The Court’s decision
APPEAL ALLOWED
- The Supreme Court found that Mitting J erred by confining himself to the two definitions in the dictionary:
“[the] meaning is to be determined according to how it would be understood by the ordinary reasonable reader… not fixed by technical, linguistically precise dictionary definitions, divorced from the context.” [25]
- The context of the remark was vital [41]:
“The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read.”
- The ordinary reader would have understood the remark to mean that Mr Stocker grasped his wife by the throat, rather than that he had tried to kill her [49].
- The appeal court can determine afresh the meaning of words if the meaning given by the trial judge was outside the range of reasonable available alternatives [59].
Significance
This judgment clarifies the role of the judge at each stage in determining the meaning of words central to a claim of defamation.
Since the Defamation Act 2013 removed the jury from the process, the decision on the meaning of a word falls solely to the judge. This decision emphasises that the judge must put themselves ‘in the shoes’ of those who would read the message, rather than rely on abstract meanings, such as those found in a dictionary. In acting as the tribunal of fact, the judge must make themselves fully aware of the context of comments, and so apply a lay-person’s analysis to general comments, rather than a lawyer’s approach of analysing each individual word.
The decision clarifies the circumstances in which the appeal courts can find a new definition, if that of the lower court is incorrect.
The decision also highlights the difficulties of deciding defamation cases in the context of social media, where posts are to be considered to be more akin to idle chatter than significant statements.
Comment
The use of social media is an area of frequent uncertainty, both in terms of how it fits in to existing legislation (as ‘publication’) and also the context and intended significance of postings.
A post on social media may be a business document for the purposes of hearsay (under s117 of the Criminal Justice Act 2003), giving it the weight and significance that is unlikely to have been considered at the time of posting. The comments about the fleeting nature and lack of thought attached to such posts in Stocker may give pause for thought in this area.
The case seems a timely warning, for both litigants and lawyers, against overreliance on social media postings as documents of deep meaning, or subjecting them to a level of scrutiny far beyond what was originally intended.
By Jennifer Routledge