The UK Supreme Court has ruled that a woman was not liable in defamation to her ex-husband for writing public messages on Facebook stating that “he tried to strangle me”. In doing so the decision (which seems to bolster the right to freedom of expression as protected by Article 10, ECHR) offers some comfort to social media users (currently more than 75% of UK internet users) who may make unwise comments about others online.
Mrs Stocker had originally sent this and other comments to Mr Stocker’s new girlfriend, apparently thinking that the comments were private rather posted publically. Her ex-husband then brought a claim in defamation against her. After weighing up the accounts of the parties, a High Court judge ruled that Mrs Stocker could not rely on the defence that the statements were substantially true.
A crucial aspect of the case was that at trial the judge discussed with the parties the dictionary definition of the verb “strangle”, which provided two possible meanings, “(a) to kill by external compression of the throat; and (b) to constrict the neck or throat painfully”. In the judge’s view Mrs Stocker’s statement would be understood by the “ordinary reader” as meaning (a). It couldn’t have been (b) because on the facts he had succeeded in ‘strangling’ her i.e. squeezing her by the throat and so therefore he couldn’t have merely ‘tried’.
Mrs Stocker appealed, arguing that reference to dictionary definitions was an impermissibly narrow approach to the meaning of the words. The Court of Appeal was not convinced, viewing the use of dictionary definitions “as a check, and no more” and ruled that “the judge’s ultimate reasoning, not dependent on dictionaries, was sound”.
The Supreme Court unanimously disagreed. Lord Kerr noted that “the primary role of the court is to focus on how the ordinary reasonable reader would construe the words. And this highlights the court’s duty to step aside from lawyerly analysis and to inhabit the world of the typical reader of a Facebook post”. He noted the similarities between Facebook and Twitter: “People scroll through it quickly. They do not pause and reflect. They do not ponder on what meaning the statement might possibly bear. Their reaction to the post is impressionistic and fleeting”.
By relying (in Lord Kerr’s view) on the dictionary definition, the judge failed to “conduct a realistic exploration of how the ordinary reader of the post would have understood it”. This was an error of law, which justified the appellate court determining the meaning afresh, which Lord Kerr held to be essentially meaning (b) above. As such, Mrs Stocker’s comments were substantially true and her appeal was allowed.
The judgment generated considerable media interest and has been hailed as a victory for “women who seek to warn others about men’s abuse”. The truth is somewhat more complicated. The case does show that judges are engaging closely with social media and thinking about how it is used by the general public (i.e. often hastily, with claims being made that shouldn’t necessarily be given the same weight were they to appear in a newspaper article). The judgment bolsters the right to freedom of expression as enshrined in Article 10 ECHR (though the court avoided framing the issue in such terms).
However, the judgment raises further questions. If the (fictional) “reasonable reader” can become the “reasonable reader of a Facebook post”, then why not the “reasonable reader” of a Guardian article? Or the Mail Online? What principled reason is there to resist piling fiction upon fiction?
The willingness of the Supreme Court to insert its own meaning of the words used may also have unintended consequences, since meaning is often heard as a preliminary issue. Powerful claimants could use the precedent to pursue expensive appeals on meaning in the hope of pricing-out less wealthy defendants before any decision on the merits of the case is ever made. In assisting an individual attempting to exercise her right to freedom of expression the Supreme Court may have unintentionally added greater complexity to an already complex area of law, potentially to the detriment of those who may follow her.