So you’re thinking of suing me for defamation? Some Top Tips

Sarah Philimore writes –  It appears that of late, a sadly frequent reaction to some of my postings is a threat to sue me for defamation. It seems that some of my readers are struggling with the both the general definition of defamation and its particular application to what I write, so in the spirit of helpful collaboration and in the face of a four hour train journey to Truro Magistrates Court,  I hereby set out some Top Tips if you are considering legal action against me on the basis that I have defamed you. 

EDIT March 11th. 

On 10th March 2017 there was judgment in the case of Monroe v Hopkins relating to tweeting and defamation. As this is a topic close to my heart, I have expanded this post to consider in more detail this judgment and its implications. If you continue to think that ‘Freedom of Speech’ gives you licence to abuse, harass and vilify others you are wrong and you do not understand the law.

Understand what is meant by ‘defamation’

It is not enough to make a published statement defamatory because it says something about you that you don’t like, or you find irritating.

The Defamation Act 2013  sets out at section 1 the requirement that a statement can only be defamatory if it causes ‘serious harm’ to your reputation. If you are a body that trades for profit it is only ‘serious harm’ if the statement has caused or is likely to cause you serious financial loss.

Paragraph 23  in Monroe v Hopkins sets out the general principles in this way. 

• Libel consists of the publication by the defendant to one or more third parties of a statement about the claimant which has a tendency to defame the claimant, and causes or is likely to cause serious harm to the claimant’s reputation.
• A published statement is only defamatory if “it attributes views that would lower a person in the estimation of “right-thinking people generally” (see para 50 of judgment in Monroe v Hopkins). See further the common law principles identified in Jeynes v News Magazines Ltd [2008] EWCA Civ 130, Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB) [2011] 1 WLR 1985, and Modi v Clarke [2011] EWCA Civ 937. The test is objective: what would the ‘ordinary reasonable reader’ think it meant? and would that meaning cause ‘right thinking members’ of society to react adversely to what they read?
• Sometimes ‘what does this statement mean?’ can be influenced by facts outside the statement itself, which aren’t common knowledge. Therefore, an otherwise innocent statement may be defamatory, or an otherwise defamatory statement innocent, in the eyes of readers aware of the “innuendo facts”. The principles are stated in Fullam v Newcastle Chronicle & Journal [1977] 1 WLR 651 and McAlpine v Bercow [2013] EWHC 1342 (QB) [49]-[55].
• The court should be wary of ‘over analysis’ – as a general rule the court must always take into account the whole of the statement that contains the particular words complained of, and of the context in which that statement appears, and of the mode of publication.

Judgment was delivered on March 10th 2017.  The case involved 2 tweets (one quickly deleted) sent by professional troll Katie Hopkins to food blogger Jack Monroe.

This judgment is also useful for its appendix explaining how Twitter works and for its comments about the need for litigants to preserve evidence – be careful about how many tweets you decide to delete, for example.

The court needed to determine

• what Katie Hopkins meant when she sent the tweets
• If what she meant was defamatory
• and if so, what was the proof they caused serious harm

Ms Hopkins defence was put in the following terms

• That Ms Monroe had herself extensively publicised the tweets complained of
• Denying that Ms Monroe had suffered substantial distress and upset, instead taking considerable pleasure in threatening proceedings against Ms Hopkins

The judgment is well worth reading in full, comprising of a full and detailed analysis of Twitter and how things are published there. It is acknowledged that it is a fast moving medium with publications compressed into 140 characters, which may however contain links to many other publications – thus it is not always easy to determine who has read what publications or what they thought about them.

However, in the circumstances of this particular case the Judge was able to be clear. He commented at para 42 of the judgment:

an inescapable conclusion that the ordinary reasonable reader of the First Tweet would understand it to mean that Ms Monroe “condoned and approved of scrawling on war memorials, vandalising monuments commemorating those who fought for her freedom.” That is a meaning that emerges clearly enough, making full allowance for everything that seems to me relevant by way of context: the characteristics of Ms Hopkins and Ms Monroe, the nature of Twitter, and the immediately surrounding contextual material on Twitter…

The extent of publication – how many people read it? – will also need to be considered. But the Judge made it clear that precision in this matter would be impossible – but it wasn’t necessary. He was able to make a ‘sound assessment of the overall scale of publication’ and concluded that the Twitter analytics showed that over 25 hours the individual tweets generated between 21,000 and 252,000 impressions, and between 198 and 14,196 engagements.

The Judge considered further detailed arguments about ‘serious harm’ from paragraph 63 of the judgment. Clearly his analysis is particular to the facts of this case, but it gives a helpful indication of what issues the court will need to hear evidence about in future cases.

• The extent of the publications
• The transience of Twitter
• The credibility of the publisher in the eyes of the publishers
• Evidence about whether or not the allegation was believed.
• Evidence of ‘harm done’ to reputation
• The extent of the abuse suffered by the claimant following publication of the defamatory statement
• The ‘existing reputation’ of the person allegedly defamed.

He was able to conclude at paragraph 74 of the judgement that

In all the circumstances and for the reasons I have given, whilst the claimant may not have proved that her reputation suffered gravely, I am satisfied that she has established that the publications complained of caused serious harm to her reputation, and met the threshold set by s 1 of the 2013 Act.

Ms Monroe was awarded £24,000 in damages plus her legal fees, estimated to be about £107,000 at the time of writing. This was a very expensive exercise for Ms Hopkins to be reminded that her ‘freedom of speech’ does not put her above the law.

The concluding remarks are well worth setting out in full

Understand the defences to defamation.

…it is not enough to prove that a statement had a defamatory tendency. A claimant must prove as a matter of fact that their reputation suffered, or is likely to suffer, serious harm as a result of the publication complained of.

• Truth is a defence – if I can prove it: if I have published a defamatory statement about you, I will have a defence to any legal action if I can show that my what I am saying, or what is imputed from what I say, is ‘substantially true’ or its my honestly held opinion. I could also claim a public interest defence. See sections 2, 3 and 4 of the 2013 Act.

Remember that I do not deliberately publish anything defamatory

I am not a defamation specialist. I can appreciate I have given only a blunt precis of the law and I am sure there are lots of other nuances I haven’t covered. But I think I have got the gist. And you need to assume that I would never intentionally publish anything that I know to be defamatory. Because I am not an idiot. Therefore if it is published, it is because I believe it to be true and worth saying.

If you are unhappy with what I publish – tell me, and tell me why

Therefore, you can assume any contact with me that is simply a demand to  ‘take down’ a post because it is potentially defamatory is, without more, not compelling. Please – if anyone is unhappy with anything I write then let me know. You can contact me via twitter, or via the website – [email protected]. I am more than happy to alter or remove statements if you can show me good reasons why I should do so. I am always happy to publish guest posts or a right of reply. But a simple threat of legal action, without explaining what exactly I have published that you consider defamatory, is not going to get you anywhere.

EDIT 30/04/17 In light of recent events, I have had to amend my ‘always happy’ policy re right to replies. I will not respond to demands that I permit a right to reply. I will not permit replies or comments that are simply a vehicle to continue promulgation of abuse, offensive material or obvious untruths. If you are genuinely seeking to enlarge and expand upon discussions – I welcome you. If your motivations are clearly something other – please don’t waste my time and yours. 

If you are not happy with my response – take it to the Bar Standards Board.

If you are not happy with my response and you want to take it further, please don’t bother my Chambers with this. When I publish on the internet it is as a private individual. My activities on line are nothing to do with Chambers. I don’t post with their endorsement or their encouragement. I can’t stop you contacting them but please don’t think that by so doing you will embarrass me or persuade me to remove a post. You won’t.

You just waste your time and theirs.  If you think my conduct is sufficiently serious to merit formal complaint then you should contact the Bar Standards Board. I understand and accept that my conduct as a private individual is open to scrutiny by my regulatory body, if that conduct is so awful that I bring my profession into disrepute.

Have a word with yourself – what do you hope to achieve?

Empty threats are pointless. If you don’t genuinely intend to take legal action against me, threatening to do so doesn’t scare me or alter my behaviour – but it will make me think rather less of you, of your judgment, your integrity and your understanding.  If you are instead annoyed or angry with what I write, consider if there are other avenues to express your frustration – or at least sleep on it.

The final paragraph of the judgment of Mr Justice Warby in Econonmou is worth citing:

Mr Gosden-Hood told me, convincingly, of meetings he had with Mr Economou in which he was told that Mr Economou wished to bankrupt Mr de Freitas. It has not been alleged, and I do not find, that this was his dominant purpose in bringing this claim. I do not believe it was. Mr Economou has pursued this case with sincerity but, as I find, in anger and with elements of vengefulness. Defamatory imputations can cause injury to feelings which is out of all proportion to the harm they cause to reputation. That, so far as the earlier publications are concerned, is this case. So far as the later publications are concerned, and more generally, Mr Economou has made the error of seeing this case from his own perspective as a victim, paying too much attention to the impact on him and his feelings, and giving insufficient consideration to the other perspectives, indeed the other rights and interests, that demand and deserve consideration.

Further reading

• Excellent article by Steven Price, a NZ barrister on the ‘Defamation Minefield’ and 12 steps on how to avoid it.
• For a useful overview of the common and statute law in this area, see the ‘striking and tragic’ libel case of Economou v David De Freitas [2016] EWHC 1853.
• See also this post from the International Forum for Responsible Media:  ‘A time to reflect; the serious harm test’.
• The real risks of acting as litigants in person in such a complex area of law set out here – claimants lost their case and their house to pay legal costs.
• The Supreme Court discuss the “Reynolds defence’ and restore the first instance decision that The Times were permitted to publish defamatory statements in the public interest; see Flood v Times Newspapers Ltd [2012] UKSC 11 (21 March 2012)
• Serafin v Malkiewicz and ors [2019] EWCA Civ 852
• Top 10 defamation cases of 2020  Inforrm blog