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Taking Stock – the Supreme Court considers the issue of defamatory meanings within the context of social media

  • United Kingdom
  • Commercial litigation
  • Litigation and dispute management

08-04-2019

The Supreme Court held that the High Court had erred in law by using dictionary definitions as the starting point of the analysis of the words “tried to strangle” and in subsequently failing to take into account the fact they were posted on Facebook. (Stocker v Stocker [2019] UKSC 17)

This judgment highlights the importance of considering the context in which words are used when analysing their meaning in relation to defamation proceedings.

Background

The case concerned comments made on Facebook by Mrs Stocker, alleging that her former husband, Mr Stocker, had tried to strangle her.

Their marriage ended on bitter terms in 2012 and Mr Stocker subsequently entered into a new relationship with Ms Bligh. Later on that year, an exchange took place on Facebook between Mrs Stocker and Ms Bligh, during which Mrs Stocker said the words “he tried to strangle me” in relation to her former husband. She also said that Mr Stocker had been removed from the house due to threats he had made, there were some ‘gun issues’ and he had broken the terms of a non-molestation order.

It was these comments which formed the basis of the defamation claim which Mr Stocker brought against his former wife. He alleged that by posting the words “he tried to strangle me” on Facebook, Mrs Stocker had suggested that he had tried to kill her. Mr Stocker argued that the assertion that he had made threats and breached a non-molestation order was defamatory and gave the impression that he was a dangerous and disreputable man.

Mrs Stocker denied this interpretation of her words and said that they meant that he had violently griped her neck, inhibiting her breathing so as to put her in fear of being killed. She maintained that it was reasonable to suggest that her former husband was a dangerous man due to his previous arrests and violent behaviour.  

At the outset of the High Court hearing, Mitting J, the trial judge, suggested that the parties should refer to the Oxford English Dictionary to define the verb ‘strangle’. It provided two possible meanings: to kill by external compression of the throat; and to constrict the neck or throat painfully.

He concluded, with reference to the dictionary definition, that the phrase ‘tried to strangle’, used in the context it was, meant that Mr Stocker had intended to kill Mrs Stocker. Mrs Stocker’s defence, that her statements were justified due to Mr Stocker’s actions and previous arrests, was rejected.

The Court of Appeal subsequently dismissed Mrs Stocker’s appeal. It held that although the use of dictionaries does not form part of the process for determining the natural and ordinary meaning of words, no harm had been done in this instance as they had only been used as a ‘check’. Therefore “the judge’s ultimate reasoning, not dependent on dictionaries, was sound.”

Supreme Court Judgment

The Supreme Court unanimously allowed Mrs Stocker’s appeal, finding that Mitting J had erred in law by using the dictionary definitions as a starting point and ignoring the context of the words.

Contrary to the view of the Court of Appeal, Mitting J was not using the definitions as merely a check. He had consulted the dictionary definitions before the trial began and had commended consideration of it to counsel. He considered them as authoritative in his analysis of the meaning of the phrase "he tried to strangle me". Moreover, when the verb “strangle” is considered in isolation before being reconnected to the word “tried” the chances of a strained meaning are increased. Greater consideration should be given to words when used together so as to better determine what the ordinary reader would consider them to mean.

In the Supreme Court judgment, Lord Kerr noted that, in the context of a defamation claim, where a phrase has a range of meanings, some defamatory and some non-defamatory, the court is not obliged to select the non-defamatory meaning. The benchmark remains what would the ordinary reasonable reader consider the words to mean. This further emphasises that the court’s primary role is to focus on how the ordinary person would interpret the words.

The ordinary reader should be considered as the person who would read the phrase in question and reflect on it in the context in which it was made. The fact that this was a Facebook post was critical.

Lord Kerr noted that:”[t]he advent of the 21st century has brought with it a new class of reader: the social media user. 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.

It would be unwise to take great time and attention to analyse a Facebook post for a theoretically or logically deducible meaning. Rather, the analysis should reflect the fact that Facebook is viewed as a casual medium. The words were used in the context of a casual conversation rather than a carefully chosen expression. People scroll through Facebook quickly, without pausing to reflect on the what meaning the statement might bear. Their reaction to a post is “impressionistic and fleeting”. The points which Mitting J raised in the High Court judgment will only emerge as a result of close analysis, something which the reasonable reader will not be engaging in.

Comment

The Supreme Court’s decision serves as a useful reminder that when considering whether or not a statement is defamatory, one should look at what the ordinary person reading that statement would consider it to mean – rather than engaging on an over-elaborate technical analysis. 

The decision also builds upon a string of recent lower authorities that make it clear that the courts consider social media to be a transient, conversational method of communication and that this should be borne in mind when considering the meaning that the ordinary reader would attribute to the words used.  This may be very different, for example, to the meaning an ordinary reader might attribute to a newspaper article which they may read in a more detailed and considered way.

Finally, this case acts as another salient lesson in the perils of social media and the need to take care when using it.  Whilst Mrs Stocker ultimately won in the Supreme Court, her original comments were made in late 2012 and proceedings were first issued in December 2013.  That victory came at the cost of many years of litigation arising out of posts which will only have taken seconds to make.

 

Omid Kheradmand
Trainee Solicitor

 

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