Social media in litigation
27 June 2017
A high profile libel claim for defamatory statements made on Twitter provides a study on how to apply the law of defamation in the social media age and highlights risks (and opportunities) that litigants or potential litigants should manage relating to use of social media: Monroe v Hopkins  EWHC 433 (QB).
The claimant (Monroe) was a food writer and blogger. The defendant (Hopkins) was a well-known newspaper columnist. In May 2015 there was an anti-austerity protest in London. During this protest, the Memorial to the Women of World War II in Whitehall was vandalised, causing public outrage. There was no suggestion Monroe was in any way involved, nor supported the vandalism. However two subsequent Tweets by Hopkins appeared to suggest that Monroe was in some way involved with, or condoned, the vandalism. The first was deleted before the second was published.
- First Tweet: “@MsJackMonroe scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom. Grandma got any more medals?”.
- Second Tweet (on the same day as the first, and after the first had been deleted at Monroe’s request): “Can someone explain to me – in 10 words or less – the difference between irritant [Laurie Penny] and social anthrax [Jack Monroe]”.
The meaning of a Tweet
For an action in libel to succeed, it must be shown that a published statement (i) has a tendency to defame and (ii) per section 1 of the Defamation Act 2013, that the statement causes, or is likely to cause, serious harm to the claimant’s reputation (the serious harm requirement).
The court, in deciding the meaning of the first and second Tweets, relied on the principles set out in Jeynes v News Magazines Ltd  EWCA Civ 130. Applying the overarching principle of reasonableness to Twitter meant that the court must take into account the whole Tweet and the context in which the ordinary reader would read that Tweet. This context could include parts of a larger Twitter conversation which the ordinary reader was likely to have read.
Warby J held that, while a reasonable reader would not have understood the Tweets to literally mean Monroe herself had defaced the war memorial, the natural and ordinary meaning of the first Tweet (and the innuendo meaning of the second Tweet to those knowing the surrounding facts) was that Monroe condoned and approved of vandalising the war memorial.
Given this meaning, the court held it had no doubt that the first and second Tweets were defamatory in nature (alleging Monroe supported a criminal act which had received widespread public condemnation).
The judgment was also notable for its application of the serious harm requirement under the Defamation Act 2013 to social media platforms.
A key part of Hopkins’ defence was that no serious harm had been caused by the Tweets. Of particular note was the argument that the first and second Tweets were transient in nature – particularly relevant given the fast-paced nature of Twitter. Rejecting this, the Court held that the key consideration was the impact a statement had – not how long people were exposed to the message.
Following assessment of the extent of publication and consideration of quantum, the court awarded Monroe GBP 24,000 (GBP 16,000 for the first Tweet and GBP 8,000 for the second Tweet) for damage to reputation and distress caused.
This is not the first libel case relating to statements made on Twitter (see in particular McAlpine v Bercow  EWHC 1342 (QB)), nor is it likely to be the last.
The costs of Tweeting first and thinking later have been emphasised: the first Tweet in this case was publically viewable for less than two and a half hours before being deleted.
The judge flagged issues in discovery caused by the deletion of: (i) the first Tweet by Ms Hopkins (at Monroe’s request); and (ii) much of Monroe’s Twitter records. Warby J noted these deletions highlighted “the responsibility of a litigant to retain and preserve material that may become disclosable, and the responsibility of a solicitor to take reasonable steps to ensure the client appreciates this responsibility and performs it”.
This warning also feeds into a broader point for practitioners. Courts are not shying away from considering the actions of individuals (or indeed employees) on social media when relevant to a case. Such actions may impact everything from discovery to settlement offers (indeed in this case Monroe had made an offer not to sue provided the first Tweet was removed and a sizeabale donation to charity was made –which the court regarded as an open offer to settle, even though it was contained in a Tweet) to the assessment of the level of damages suffered by a claimant.
For commercial parties, an errant Tweet could be relevant to what parties understood a statement or provision to mean. Where appropriate, ensure consideration is given to social media accounts when providing guidance and retention notices to employees. When embarking on litigation involving an individual with a highly active online presence, monitoring their social media accounts may be prudent.
This case summary is part of the Allen & Overy Litigation and Dispute Resolution Review, a monthly publication. If you wish to receive this publication, please contact Amy Edwards, firstname.lastname@example.org.