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tweet provides the ‘sting’ without necessarily providing the context. There is also the potential for ‘Twitter-specific’ defamation claims, with the developing notion that emojis can be defamatory. Consider the case of McAlpine v Bercow . The BBC programme Newsnight falsely linked an unnamed “senior Conservative” politician to sex abuse claims. After the programme, Sally Bercow tweeted, “Why is Lord McAlpine trending? *innocent face*”. Lord McAlpine alleged that he was defamed by these comments. The High Court found that a reasonable reader would interpret the emoji as “insincere and ironical” which, when placed alongside the tweet, insinuated that McAlpine was guilty of sexual abuse. The case settled shortly after this decision for an undisclosed amount of damages. “Serious harm” The common law test for a defamation claim is whether the meaning assigned to the statement has the tendency to lower the claimant in the estimation of “right-thinking people generally”. The Defamation Act 2013 added the further requirement of “serious harm”, noting: “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.” Subsequent case law has examined the meaning of “serious harm”. To bring a successful claim under the Defamation Act, claimants have to go further than simply showing a “tendency to harm reputation”. Injury to feelings alone is also not sufficient. Claimants must now show that on the balance of probabilities, serious reputational harm has been caused by, or is likely to result in future from, the publication complained of. This requirement has
undoubtedly raised the bar to be met to bring a successful defamation claim. It might appear unlikely that ‘Twibel’ claims would be able to meet this requirement, as the transient nature of Twitter indicates that any harm caused will be short-lived. However, the recent decision of Mr Justice Warby in Monroe v Hopkins rebuked this suggestion with some force. Jack Monroe, a food blogger, was awarded £24,000 in damages after Warby held that two tweets by Katie Hopkins were defamatory. The judge found that Hopkins’ tweets conveyed the meaning that Monroe “condoned and approved of scrawling on war memorials, vandalising monuments commemorating those who fought for her freedom”. One of the arguments relied on by Hopkins in her defence was that the tweets did not meet the “serious harm” threshold. Although Warby noted the transient and conversational nature of Twitter, he did not accept that this precluded any finding of “serious harm”. In fact, on a “straightforward” interpretation, he found that the harm to Monroe was sufficiently serious to meet this threshold. While the first tweet was kept on Hopkins’ twitter feed for only a number of hours before it was deleted, her large number of followers and the national coverage of the event contributed to the finding of “serious harm”. Advice The Monroe v Hopkins judgment offers useful lessons to businesses with an online presence.
the credibility of the statement, because “Twitter is not somewhere where one goes to make well- reasoned, well-legalled arguments”. Warby’s judgment validates the opposing school of thought: just because something is published on Twitter does not mean it will not be seen, believed and disseminated by a potentially vast number of people. Better safe than sorry Hopkins was criticised for her conduct throughout the claim, including her failure to provide a swift apology. If faced with a meritorious defamation claim, it may be better to retract the statement and offer a suitable apology, rather than risk facing a large sum of damages and rising costs. Put a policy in place A stringent social media policy is a necessity for any business. Remember that a company may be held liable for anything posted by an employee on his or her personal account, if it is not clear to the reader that the employee is speaking on a personal level. To counter this risk, businesses should require employees to use disclaimers on their personal accounts. Keep on top of the law The meaning of “serious harm” is by no means set in stone. Neither are the circumstances in which such harm can be proven. Indeed, judgment is currently awaited from the Court of Appeal which will offer further clarification on the meaning of the term. Keeping on top of the relevant law will ensure businesses remain aware of their developing obligations within the online sphere.
Take it seriously Twitter is not, as advocated by
Hopkins’ lawyer, the “Wild West” of media publications. Hopkins argued that making allegations on Twitter immediately alters the context and
Nadia Tymkiw is a trainee solicitor at RPC
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