- The case concerned defamatory comments made by the appellant, the respondent’s former wife, on Facebook in 2012 (the Comments). The Comments were made on a status update that the respondent’s partner had posted to her own Facebook wall (the Status Update). Both the Status Update and the Comments were visible to the Facebook friends of the respondent’s partner.
- At first instance (see:  EWHC 474 (QB)), the Judge found (at ) that the Comments had been published to the Facebook friends of the respondent’s partner; and that the Comments invited a defamatory inference to the effect of the Claimant’s pleaded case on meaning; namely:
“…that the defendant was dangerous, at least to any woman with whom he lived or had lived, that he was a man who had tried to kill on one occasion, had been arrested for an offence involving firearms on another, and had given the police reason to believe that he had broken a non-molestation order made against him.”
- A One Brick Court case note on the first instance judgment can be found here.
Issues before the Court
- Did the Judge come to the correct conclusion on meaning?
- Did the Judge err in his determination as to whether the appellant’s justification defence had been made out?
- Did the Judge apply the correct legal test with regard to publication?
Issue: Meaning (1)
- In the course of argument as to the meaning of the Comments, the Judge drew counsel’s attention to the two senses in which the word “strangle” was defined in the Oxford English Dictionary (OED): (1) “To kill by external compression of the throat”, and (2) “To constrict painfully (of the neck or throat)”. It was noted by Sharp LJ that the use of dictionaries does not form part of the process of determining the natural and ordinary meaning of words ; however, the Judge’s reference to the dictionary definition was understandable given how the arguments developed before him .
- Sharp LJ noted that, notwithstanding the Judge’s reference to the OED, he was obviously well aware of the correct approach in law to the determination of meaning. The judge considered the reader would not have understood the appellant to be alleging that the respondent had tried to compress her neck since it was obvious she was alleging that he had compressed her neck (leaving handprints on it); what the reader would have understood from the words, was that the respondent had tried but failed to kill the appellant by compressing her neck; strangling her therefore in the first sense. The Judge directed himself explicitly by reference to the well-established principles set out in Jeynes v News Magazines Limited  EWCA Civ 130 (as qualified in Rufus v Elliott  EWCA Civ 121); moreover, since he had merely used the dictionary definitions as a check and no more, his ultimate reasoning was sound: –.
Issue: Meaning (2)
- The second issue on meaning arose in relation to the Judge’s determination that the overall effect of the Comments was that the respondent was a dangerous man.
- It was argued on behalf of the appellant that it was not open to the Judge to detach ‘dangerousness’ from the ‘arrests’ to which that word was pleaded in the respondent’s pleaded meaning. In dealing with the appellant’s submission, Sharp LJ restated the principle that a judge is not bound to accept either parties’ pleaded meanings, save that a claimant cannot recover for a more injurious meaning than that of which he complains: Slim v Daily Telegraph  2 AC 157.
- In any event, it was held that the Judge’s reference to dangerousness was not a freestanding meaning but merely an overall characterisation of the impression the Comments conveyed in light of the meanings they were found to bear . In any event, the appellant’s complaint of unfairness in this regard was a hollow one. Since she had herself sought to justify as a freestanding meaning that the respondent was dangerous and disreputable, there was no basis for the suggestion that she would have run her case differently had the respondent complained of such a meaning .
- Although not within the ambit of the grounds of appeal for which permission was given , it was also argued before the Court that, having regard to what the appellant had proved to be true in her defence of justification, under section 5 of the Defamation Act 1952 (in force at the time the Comments were published) the Judge should have found that the appellant’s defence of justification had been made out. Sharp LJ held that it had plainly been open to the Judge to find, as he did, that although the appellant had proved some justification for the words she used, the allegations levelled against the respondent were a significant and distorting overstatement of what had in fact occurred, and thus fell far short of establishing a successful defence of justification, by reference to section 5 or otherwise .
- It was argued by the appellant that to found liability for publication, or republication (as was asserted to be the position here), there has to be a knowledge-based test, alternatively a negligence-based test, with the burden of proof on the claimant in order to rebalance the law more fairly in favour of defendants. The appellant’s submission was focused squarely on the obiter comments of Laws LJ (as he then was) in Terluk v Berezovsky  EWCA Civ 1534, at -.
- Sharp LJ held that the posting of comments on a Facebook wall was in reality no different in substance, or in principle, to the putting up of a notice on a conventional notice board, accessible to third parties. When the appellant posted her Comments on the respondent’s partner’s Facebook wall, they were instantly accessible to all the latter’s Facebook friends; the appellant published her Comments (in the legal sense) to every third party who read on the Facebook Wall what she had posted there: there was no repetition of the Comments (by intervening third parties to others) involved. The fact that the ‘notice board’ was electronic, rather than a physical one did not call for some fundamental realignment of the well-settled common law approach to the issue of publication . It was further noted that the appellant’s reliance on Terluk was inapt for two reasons: that case concerned republications, as opposed to publications; and the observations of Laws LJ had been obiter and did not benefit from the fuller argument which he felt the point required . In his judgment in the present appeal, Sir John Laws himself was in agreement with Sharp LJ that the appellant’s reliance on Terluk was “inapt” .
- On the facts, it was held that there was nothing unjust in holding the appellant responsible for publishing the Comments to third parties. The appellant was the originator of the Comments; was aware that Facebook was a semi-public platform; and had deliberately posted the Comments on that platform without thinking about who else might see them. Nor was there any injustice in requiring such a defendant to establish that care was taken to confine a publication to its intended target, if such a point can properly be taken .
- In relation to the appellant’s call for the law to be rebalanced more fairly in favour of defendants, Sharp LJ considered that this submission failed to take into account broader considerations, including the rights of those whose reputation may be damaged by the careless promulgation of serious allegations, so easily done via the internet or by other means. Accordingly, the delicate balance between the right to reputation and the right to freedom of expression did not justify changing the law on publication in the manner suggested by the appellant .
- In light of the above, the appellant’s appeal was dismissed.
The judgment is available here.