Social Media and the ‘Ordinary Reasonable Reader’

By Ciaran O’Shiel, Associate in IP, Media & Data Disputes, A&L Goodbody

“He tried to strangle me. What would those words convey to the ordinary reasonable reader of a Facebook post?” is how Lord Kerr, former Lord Chief Justice of Northern Ireland, opened his 22-page judgment in a recent Supreme Court decision (Stocker v Stocker (2019) UKSC 17).

The role of the judge or jury in a defamation case is to determine how the ‘ordinary reasonable reader’ understands alleged defamatory material. The above judgment examines how it applies to social media and provides guidance for analysing the meaning of words published on digital platforms such as Facebook and Twitter.

Background

On 23 December 2012 an exchange took place on Facebook between Nicola Stocker and Deborah Bligh. Ms Bligh had a relationship with Ronald Stocker, Ms Stocker's former husband. During the exchange, Ms Stocker informed Ms Bligh that Mr Stocker tried to strangle her, which related to an alleged incident on 23 March 2003.

Ms Stocker also commented that her ex-husband was removed from the house following threatening behaviour, a number of ‘gun issues’, and the fact that the police believed he had broken the terms of a non-molestation order.

Mr Stocker subsequently issued proceedings against Ms Stocker for defamation in respect of the Facebook comments. He alleged the meaning of the words “he tried to strangle me” implied he tried to kill her. He also alleged her other comments implied he was a dangerous and disreputable man.

The judge at first instance, Mitting J, referred to the Oxford English Dictionary’s definition of the verb ‘strangle’, which provided two meanings: (a) to kill by external compression of the throat and (b) to constrict the neck or throat painfully. As Ms Stocker had used the word “tried” the judge held the ‘ordinary responsible reader’ would understand Mr Stocker attempted to kill her by external compression of the throat.

The judge concluded the remaining comments inferred Mr Stocker was dangerous and therefore the alleged statements were defamatory. Ms Stocker's defence of justification was rejected because, although Mr Stocker committed an offence against her in March 2003, she hadn’t met the ‘sting’ of the comments that Mr Stocker was a dangerous man. In 2018, the Court of Appeal upheld the decision of the trial judge.

UK Supreme Court decision

On 3 April 2019, the UK Supreme Court unanimously overturned the decision of the lower courts. It held the fact that it was a Facebook post was “critical”, as the platform is a “casual medium” on which people scroll through content quickly. The court concluded the trial judge failed to carry out a realistic exploration of how the Facebook post would have been understood by an ‘ordinary reasonable reader’. It also determined its own meaning and held that the ‘’ordinary reasonable reader would understand the words “he tried to strangle me” to mean Mr Stocker grasped Ms Stocker by the neck.

The court held that Ms Stocker could rely on the justification defence, as it was not in dispute that her ex-husband grasped her by the throat, uttered threats, or breached a non-molestation order. The court concluded that many people would consider this sufficient to establish that Mr Stocker was a dangerous and disreputable man, which is the justification Ms Stocker sought to establish.

Comment

The media coverage of the judgment focused on the message sent to those who face the prospect of defamation proceedings when speaking out on domestic abuse. A similar message featured in a statement given by Ms Stocker following the Supreme Court’s decision.

For practitioners, the judgment provides welcome guidance on what Lord Kerr calls a “new class of reader”. It makes clear that the meaning an ordinary reasonable reader takes from a social media post is more impressionistic than that taken from an article published in a newspaper. In short, it recognises a social media user is unlikely to consult a dictionary when reading a Facebook post or a Tweet and therefore less likely to subject words to close analysis.

The ruling marks a departure from the approach taken in traditional defamation cases and should be considered carefully when dealing with potentially defamatory material posted on social media platforms.

To contact Ciaran O’Shiel at A&L Goodbody, please email coshiel@algoodbody.com or call 028 9031 4466.