Reference:  EWCA Civ 170;  E.M.L.R. 15;  1 F.C.R. 763
Court: Court of Appeal
Judge: McFarlane and Sharp LJJ and Sir John Laws
Date of judgment: 12 Feb 2018
Summary: Libel – social media – meaning – justification – publication
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Instructing Solicitors: David Price Solicitors for the Defendant/Appellant; SA Law LLP for the Claimant/Respondent.
D, who was the ex-wife of C, was ‘friends’ on Facebook with C’s new partner. D had commented on a status on the partner’s Facebook wall, and during an exchange of further ‘comments’ the words complained of had been posted. The status and comments were visible to the new partner’s Facebook friends.
Mitting J, the judge at first instance, had found that D was liable for the publication of the words, that they were defamatory, and the overall effect was that C was a dangerous man. As part of the meaning the judge had found that when D said that C “tried to strangle me” the ordinary reasonable reader would have understood the words to mean that he had attempted to kill her. D appealed.
- Whether the meaning had been properly decided given the context of the words complained of.
- Whether Mitting J was entitled to decide on the meaning he found, as it was not one that had been attributed to the words by D.
- Whether the justification defence had been properly made out.
- Whether D was responsible for the comments, given that she believed that some of the comments had been made in private.
Dismissing the appeal:
- The Judge properly directed himself on the law, and had sufficient regard for the context of the words complained of. The Judge’s reference to the dictionary definition of ‘strangled’ was understandable and did not lead him into error (although the use of dictionaries does not form part of the process of determining the natural and ordinary meaning of words).
- The Judge was not bound to either of the parties’ rival meanings, and the Judge’s reference to the C’s dangerousness was only an overall characterisation of the impression the comments conveyed in light of the discrete meanings he found and not a freestanding meaning. In any event D sought to justify that C was dangerous and disreputable and as such there was no basis that she would have run her case differently.
- The common assault committed by C, by placing his hand over D’s mouth and putting his hand under her chin in order to stop her speaking, fell short by some measure of a defence of justification that he had attempted to kill by strangulation.
- D was responsible for the comments, as they were a publication, not a republication. There was no repetition of the comments by intervening third parties to others. The action of posting was no different in principle to putting up a notice on a conventional notice board and D was liable for the publications.
Sharp LJ brought publication occurring on social media firmly into the well-settled common law approach: there being no difference between an electronic ‘notice board’, in this case a Facebook wall, and a physical one.
D sought to characterise the comments as republications because they were appended to a third party’s status (who could restrict access to the status or take the comments down). D relied upon the obiter remarks of Laws LJ (as he was then) in Terluk v Berezovsky (No. 2)  EWCA Civ 1534 at , which stated that liability for a republication should arise from “knowing or deliberate action”. Alternatively, D asked for the court to apply a test based on negligence. Sharp LJ rejected this argument, and comparison to the Turluk case was considered to be “inapt” by Sir John Laws.
This case makes clear that the test of liability for publication should not be the same as republication, and that the distinction drawn properly reflects the difference between the two situations. In particular, it was considered that it was not at all unjust to require a defendant to establish that care is taken to confine a publication to its intended target.