Defamation in social media does not rest on dictionary definition

Published on: Sunday, April 21, 2019

By: Salleh Buang

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Libel law has never been easy for the ordinary folks to understand. The first time I heard this statement was over 50 years ago when I was a law student in London. I was reminded of this last week when I came across the recent libel case of Nicola Stocker.

The Telegraph described her landmark libel case as a “victory for common sense”. The Guardian described it as an “extraordinary case”.

Nicola, 51, was married to Ronald Stocker for 13 years. In 2012, the couple went through an acrimonious divorce.

Soon after that, on Dec 23, 2012, Nicola posted something on her former husband’s new girlfriend Deborah Bligh’s Facebook page. She wrote that Ronald had “tried to strangle me”. Incensed by the posting, Ronald Stocker, 68, sued Nicola for libel.

Nicola’s counsel,David Price, in his written submission to the High Court, argued that the phrase ‘tried to strangle’ is a common way of describing “an assault” involving a constriction of the neck or throat. It did not convey any intent to kill.

In 2016, the High Court ruled in the plaintiff’s favour. Justice Mitting had focused on two dictionary definitions of the verb “to strangle” and concluded that Nicola’s Facebook comments meant that her husband had attempted to kill her.

Nicola was ordered to pay £5,000 in damages plus legal costs. Following an unsuccessful appeal to the Court of Appeal, her legal costs escalated to more than £200,000.

The Court of Appeal had rejected her appeal and upheld the High Court’s decision. She sought leave and was allowed to appeal to the Supreme Court.

Delivering the unanimous 22-page judgment of the Supreme Court (a panel of five judges), Lord Kerr began by posing a question (in paragraph 1): “‘He tried to strangle me’. What would those words convey to the ‘ordinary reasonable reader’ of a Facebook post?”

In paragraph 25, Lord Kerr referred to the danger of using dictionary definitions to provide a guide to “the meaning” of an alleged defamatory statement. He said that the “meaning” must be determined according to how it would be understood by the ordinary reasonable reader.

“It is not fixed by technical, linguistically precise dictionary definitions, divorced from the context in which the statement was made,” he added.

Lord Kerr added: “The fact that this was a Facebook post is critical. The advent of the 21st century has brought with it a new class of reader: the social media user.”

He added that any trial judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read.

He also stated that Facebook “is a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre-eminently one in which the reader reads and passes on”.

Quoting an earlier judgment of Nicklin J in Monir v Wood [2018], Lord Kerr said that Facebook is a moving medium. “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”.

He concluded, in view of the judge’s error of law, his decision as to the meaning of the Facebook post cannot stand. Allowing Nicola’s appeal, the Supreme Court ordered Ronald Stocker to pay all legal costs.

Happy with the judgment, Nicola said that the legal battle with her ex-husband was five years of hell and said she was delighted and hugely relieved by the result. If she had lost the appeal, she would have face a legal bill of £300,000. She was fortunate to have a counsel who believed in her.

This Supreme Court decision was welcomed by domestic abuse charities in the UK. The Centre for Women’s Justice tweeted, “Great news. Horrible that Nicola Stocker had to go through all this in the first place. The courts shouldn’t be silencing survivors of domestic abuse.”

For Malaysian social media users, this case offers (at least) two important lessons. One, words have more than one meaning; therefore choose your words carefully when you post in Facebook or when you tweet.

Two, should you be careless or reckless when doing so, you can take comfort that English judges now take a tolerant attitude of such postings or tweets. I am, however, not sure whether our Malaysian judges will in the future be as tolerant as their English counterparts.

The writer formerly served the AG’s Chambers before he left for private practice, the corporate sector and academia.