This Student Companion by Barry Allan appeared in the 2017 edition of the New Zealand Law Journal [2014] NZLJ 88a.

STUDENT COMPANION: TORTS

Monroe v Hopkins [2017] EWHC 433

 

This case is concerned with the application of orthodox defamation principles to a twitterstorm. After the 2015 United Kingdom general election, there was an anti-austerity protest in London, which turned violent. Words critical of the Conservative government were spray-painted on the Memorial to the Women of WWII. This attracted a lot of publicity. A person with the handle @PennyRed tweeted twice that she had no problem with the vandalisation of the war memorial. The defendant tweeted twice in response to these tweets, in terms derogatory of @PennyRed. This exchange was reported on in the mainstream media.

A week later, the defendant tweeted twice. The first read “@MsJackMonroe scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom. Grandma got any more medals?” (@MsJackMonroe was the twitter handle used by the plaintiff at the time). She replied three times, denying her involvement, saying she had a family military history and asking the plaintiff to remove the tweet. Her last tweet said “public apology +£5k to migrant rescue & I won’t sue. It’ll be cheaper for you and v. satisfying for me”. The defendant deleted her tweet (a little over 2 hours after it was posted) but then tweeted “Can someone explain to me — in 10 words or less — the difference between irritant @PennyRed and social anthrax @Jack Monroe”. This exchange also received extensive mainstream media coverage. Nearly two weeks later, the defendant tweeted “@MsJackMonroe I was confused about identity. I got it wrong”.

The plaintiff had approximately 75,000 followers and the defendant had 570,000. While the defendant’s tweets would not have gone to all of her followers’ timelines, they were visible to anyone who looked at her timeline and were retweeted a number of times. The Court estimated (at [58]-[59]) that the first tweet was read by approximately 20,000 people and the second by 100,000. Although the Court accepted that the words would not carry the meaning that the plaintiff had vandalised the memorial herself, it held that she condoned or approved of the desecration. In reaching this finding, Warby J said that it was not proper for a court to select the most defamatory meaning available, unless that meaning was the meaning that the hypothetical reasonable reader would attribute to the words.

At [34], his Lordship acknowledged that the traditional rules for determining meaning are easier to apply to print publications than “in the more dynamic and interactive world of Twitter, where short bursts of pithily expressed information are the norm, and a single tweet rarely exists in isolation from others”. While the followers of the parties could be expected to have opposing political views, that is not relevant to meaning.

A tweet might “need to be read as part of a series of tweets which the ordinary reader will have seen” either at the same time or earlier in the “multi-dimensional conversation”. The size of tweets meant they called for an “impressionistic approach” rather than “elaborate analysis”, but taking into account any background knowledge (including of other tweets) of the reasonable reader. If a tweet included a hyperlink, his Lordship said at [37] that the reasonable reader would be expected to have read the linked page. Tweets other than those complained would be part of the context (and thus known to the reasonable reader) if they are on Twitter and “sufficiently closely connected in time, content, or otherwise that it is likely to have been in the hypothetical reader’s view, or in their mind, at the time they read the words complained of” (at [38]). Tweets from days earlier might not meet this test, if they have been pushed out of sight by subsequent tweets — this would be common for regular tweeters.

The tweets were 9 days after the damage to the memorial. Warby J held that many (but not all) readers of the tweets would be aware of that, the tweet by @PennyRed and the defendant’s tweet in which she attacked her. This would enable them to read the claimed meaning into the tweets complained about. The meaning itself was held to be defamatory without much discussion.

The defendant, in effect, argued that things said on Twitter cause no harm because it is the “Wild West” where no-one takes anything seriously and messages are so transient. Warby J at [69] said that where tweets have a seriously defamatory tendency and have been widely published, that will often be sufficient to satisfy the serious harm to reputation element required by English law. The mere fact tweets are normally read just once and quickly does not mean they lack impact. In addition, there was no reason to think readers would discount statements just because they were made on Twitter, particularly where their author is a well-known newspaper columnist. His Lordship accepted the plaintiff’s evidence that she had received a substantial number of abusive tweets after those by the defendant. Problematically, the plaintiff had already been receiving abusive tweets, which led the defendant to argue there had been no increase in abuse, and thus no damage to reputation. Warby J at [71](7) described this as a “tricky area” but concluded that “it is not safe to infer that a claimant’s reputation has not been harmed by a specific defamatory allegation just because a person who makes rude remarks about the claimant after publication also made rude remarks about her before”.

 

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