Monroe v Hopkins – the ‘wild west’ defence

The judgment that was handed down this afternoon in Monroe v Hopkins [2017] EWHC 433 QB is significant in its interpretation of a couple of the points to do with the interpretation of the 2013 Defamation Act.  Not least beacuse this case was the most high profile case yet of a social media spat resulting in defamation proceedings.

After the General Election in 2015 there was a protest in Whitehall which got out of hand   a war memorial was graffitied with the statement “F*** Tory scum”. It was particularly shocking as it was on the Monument to the Women of World War II and there was an attempt made by some on the far left, to explain this incident in political terms. The defendant Katie Hopkins, an outspoken opinion writer on the far right, known for deliberately seeking controversy over racist statements, tweeted the claimant, the journalist Jack Monroe saying;  “Scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom. Grandma got any more medals?” It seems from the defendants case that she thought the claimant was another journalist who had tried to explain the protests. The claimant was shocked by this, as she came from a military family and was by her own admission proud of the military,  and she tweeted back “Dear @KTHopkins, public apology + £5K to migrant rescue and I won’t sue. It’ll be cheaper for you and v satisfying for me.”

The case of mistaken identity was resolved after an exchange of tweets, mostly from claimant, but no apology from Katie Hopkins (the Defendant was forthcoming). The first issue of whether the statement was defamatory relatively straightforward – the claimant contended that the ordinary meaning of the words were that either she had defaced a war memorial or that she approved the defacing of the war memorial. The defendant’s case was that read in its proper context what she meant was the claimant ““was supportive – politically – of those who had painted the slogan onto the monument.” The correct test was to be found in Charleston v News Group Newspapers Ltd [1995] 2 AC 65 which required the court to look at the context and the meaning that the reader would draw from the statement. The context element the judge concluded was made all the more difficult by twitter, because timelines are difficult to read as a unified piece and often earlier statements disappear. However,  looking at the statement in the first tweet and Katie Hopkins subsequent tweet where she described the claimant as “social anthrax” it was clear that the ordinary meaning of the words were to infer that the claimant did approve of the defacing of the monument as her apparent lack of concern about mis-identification meant that context in which the statement was read was one that pointed to that conclusion.

The requirement imposed by section 1 of the 2013 Defamation Act that the claimant needs to show that they the defamatory statement “has caused or is likely to cause serious harm to the reputation of the claimant.” In Sobrinho v Impresa Publishing SA [2016] it was clarified that an injury to feelings alone, however grave, will not be sufficient to activate the requirements of section 1. This provision reflects the pre-2013 position where the Courts were inclined to strike out cases involving trivial or procedural harms – see Jameel v Dow Jones [2005] EWCA Civ 75. The first tweet, the defamatory tweeted was deleted a few hours afterwards. However the court held that what matters  “is not the period of time for which a person is exposed to the message but the impact the message has”. This very significant in the assessment of the scope of section 1 and the evidence based assessment that Court undertook looking at the context of the tweet, its exposure (based on the number of views that the defendants twitter profile had) and any responses or reaction to the original tweet.

Significantly on the subject matter of the tweet and whether readers believed the court held that the absence of evidence  that it was believed was not “evidence of a lack of harm.” This seems to be quite significant as the court seems to suggest that this would not inform a contextual assessment of the damage or likely damage to reputation in an assessment of harm under section 1. This would mean that an outlandish, but harmful claim, could potentially be defamatory. The court also gave relatively short shrift to the idea of the ‘wild-west’ theory regarding social media, which maintained that more latitude should be applied to these statements.

It is noteworthy that the damages were very high because they included the full legal costs for the claimants, which has led some commentators to note that the decision raises problems about free speech and the potential “chilling effect” of the decision.  The implications for freedom of expression more generally do deserve some attention as political speech gets more heated and attempts to shoehorn views into 140 characters means nuance is lost.

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