The Tweet would be taken to mean that the two men in the photograph were involved in the sexual abuse of children.
This was not a mass publication case where the Court is able to draw a sure inference as to publication, and C must demonstrate his case on publication by evidence. C successfully established on the facts that a number of people were able to identify him. The republications of the Tweet would likely have led to a significant but unquantifiable number of people identifying C from the photograph.
- Responsibility for the publication
- Direct participation/authorisation
This basis fails on the facts. In order to be held as a primary publisher, a person must be shown to have had knowing involvement in the publication of the particular words. It was the Vice Chairman who posted the Tweet and D did not specifically authorise it.
D was liable. The publication of the Tweet was part of the essential function of the task delegated to the Vice Chairman: to post material on the campaigning social media platforms. The Vice Chairman posted in this capacity and acting within the scope of the job he had been delegated. There is no need for contract or payment. D retained effective control over the account practically as he could change the password at any time and by dint of his authority as Chairman.
After reviewing the authorities, the Judge determined that this issue did not need to be decided as D was liable for the Tweet on the basis of agency. The Judge stated that vicarious liability might be raised by C as a matter on appeal in the event that he was wrong in his conclusions as to agency.
- Byrne v Dean ratification
D was liable. C complained about the Tweet to D in a telephone call on 8 May 2015. As such, D’s knowledge of the defamatory publication was sufficient to draw the inference that he had acquiesced in and thereby authorised its continued publication. Following the complaint about the Tweet by C, D knew the gist and substantive content of the Tweet, even though he had not looked at its particular wording. This information would have enabled him to understand that the Tweet was published on the Bristol UKIP Twitter account, the Tweet’s seriously defamatory nature, and the means to locate (and delete) it. D did not have a justification for ignoring or dismissing the complaint.
- Serious Harm
The meaning of the Tweet was a very seriously defamatory allegation of conduct that that is a serious criminal offence and as such draws the inference that the publication would cause serious harm to C. This was not rebutted on the facts. The Tweet was published or republished to at least ten identifiable individuals. There were an unquantifiable number of further publishees who would have also been able to identify C.
The appropriate award is £40,000.
The gravity of the defamatory allegation puts it towards the top end of seriousness and there is evidence of serious and significant reputational harm. However, the extent of publication, measured by the number of publishees who would have understood that the allegation was being targeted at C, was very limited. D is only liable for the consequences that flow from the publication of the Tweet, not the unconnected publications of similar allegations by others. D also refused to publicly apologise and withdraw the allegation, which had a significant effect on the award of damages. Had the libel been published in a national newspaper, an award of £250,000 or more could have easily been justified.
An injunction is not necessary. There is no evidence of D threatening to republish the Tweet or anything similar.
Section 12 of the Defamation Act 2013 allows for an order to be made requiring the publication of a summary of the judgment. There is no method by which D could be ordered to publish a summary of the judgment that would provide a realistic prospect of it coming to the attention of a significant number of the original publishees. C is likely to secure vindication of his reputation through the publicity that the judgment is likely to receive through other channels.