The determination of defamatory meaning in a digital era

Published on
6 min read

“Tried to strangle me…” Is this Facebook post defamatory? Reputation is everything. In our digital world it can be shattered in seconds, by fewer than 120 characters and by a solitary social media post.

In a controversial and factually sensitive case, the courts recently analysed the defamatory meaning of the words “[he] tried to strangle me” posted about Mr Ronald Stocker by his former wife, Nicola Stocker, using her Facebook account. Mrs Stocker posted about her former husband’s violent actions, but then faced a defamation claim brought by that former husband who alleged that her posting falsely suggested he had tried to kill her.

The battle was lengthy, protracted, and culminated in the recent Supreme Court judgment in  Stocker v Stocker. Consequently, we now have guidance from the highest court of a new sub-category of the social media “reasonable reader” and have clarity on how the meanings such readers reach should be determined.

In this day and age, we are connected by social media and our statements have an international reach to millions. By making statements online using everyday social media accounts, one can quite easily become embroiled in litigation regarding reputational harm. Stocker provides welcome guidance in a social media context and it appears that the courts have taken a forward thinking approach to reach what is largely reported as a “common sense” decision.

Defamation

The Oxford English Dictionary defines “defamation” as follows:

Law: The action, offence, or charge of damaging the reputation of a person or organization by making or disseminating false or unprovable statements; libel or slander”.

Jumping ahead (and a spoiler alert) when considering if a statement has a potential defamatory meaning, Stocker provides clear authority that dictionaries are not a safe sole point of reference.

Before turning to the facts of Stocker, generally, for a statement (published online or otherwise) to be considered defamatory it must be untrue, must lower the reputation of the claimant and be capable of causing serious harm, or serious financial loss to a body that trades for profit.

A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant (Section 1(1) Defamation Act 2013)

A defendant may seek defend a social media post and rely upon lines of defence such as truth, honest opinion, privilege, or publication on a matter public interest.

However, at the heart of any defamation dispute is the meaning of the defamatory statement complained of. Put simply, what does the statement actually mean to the reader? What meaning does it convey?

Not always an easy question to answer, and often, the parties do not agree on the potential defamatory meaning, with claimant and defendant submitting their own version of defamatory meanings. In my experience, parties often put forward meanings that are poles apart.

It is therefore the court’s job to objectively determine a “single right meaning”. To save costs and court time, where there is a clear dispute on meaning, these determinations should now be dealt with as a preliminary issue.

Stocker v Stocker

Mrs Stocker published a Facebook post in which she alleged that Mr Stocker, had “tried to strangle me”.  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 submitted that her words had a lower meaning, that Mr Stocker had violently grasped her by the neck and inhibited her breathing putting her in fear of being killed (which was true, and therefore completely defensible).

The parties clearly disputed the meaning of the post. The case therefore critically turned on the “single right meaning” and what the reasonable reader would have understood Mrs Stocker’s words to mean.

The meaning of “strangle”

After consulting the OED and its two meanings of “strangle”, the first instance judge (Mitting J) concluded the reader would not have understood Mrs 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.

The single right meaning was that Mr Stocker had tried but failed to kill Mrs Stocker by compressing her neck. He found that Mrs 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 truth (then justification) defence. On this basis, he held that Mr Stocker had been libelled.

The Court of Appeal

Mrs Stocker then appealed. The Court of Appeal dismissed the appeal and whilst made observations about its jurisdiction, approved Mitting J’s approach to establishing the meaning.

The Supreme Court

The Supreme Court unanimously allowed Mrs Stocker’s appeal. It held that Mitting J erred in law by using dictionary definitions as the starting point of his analysis of meaning and in subsequently failing properly to take into account the context of the Facebook post.

In the judgment, it was stated that the primary role of the court is to focus on how the ordinary reasonable reader would construe the words. To fulfil this obligation, the court should be particularly conscious of the context in which a statement is made. The hypothetical reader should be considered to be a person who would read the publication.

The fact that this was a Facebook post was critical and it was necessary for the judge to keep in mind the way in such postings are made and read. It was said to be unwise to search a Facebook post for its theoretical or logical meaning. The search for meaning should reflect the fact that this is a casual medium in the nature of a conversation rather than a carefully chosen expression. People scroll through Facebook quickly and their reaction to posts is impressionistic and fleeting.

Through relying on the dictionary definitions, Mitting J fell into legal error as he failed to conduct a realistic exploration of how an ordinary reader of the Facebook post would have understood it.

The Supreme Court found that the ordinary reader of the post would have interpreted the post as meaning that Mr Stocker had grasped Mrs Stocker by the throat and applied force to her neck. Therefore, her defence should succeed.

Comment

The Supreme Court judgment refers repeatedly to the word “context” when considering defamatory meaning (the word appears 16 times, to be precise). Therefore, it is clear that one of the key questions when considering meaning is “in what context is the statement made?”. There is an apparent distinction between the “fleeting” Facebook reader and say, a reader of the Financial Times. The context within which the statement made will be critical and careful consideration should be given to this point early on in case analysis.  Over-elaborate analysis is best avoided.

There are many cases that serve as a cautionary tale of be careful what you post on social media, and Stocker is certainly a reminder of that rule and I advocate that general proposition. However, Stocker has also been widely reported as a victory for victims of domestic abuse who should not be “gagged” by laws silencing them of their fundamental rights to speak out. 

Does Stocker mean that posts on social media will generally be attributed a lower defamatory meaning, given the “fleeting” nature of readers of Facebook and the like?  Potentially. This case is unlikely to deter a defamation claimant, but certainly raises the prospect of a lower defamatory meaning in the context of “casual” social media use. We will be closely following the next round of judicial determinations on meaning; watch this space.

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