The Court of Appeal has rejected an argument that there is a need to “rebalance” the law of defamation in favour of defendants by imposing a knowledge or negligence based test to establish liability for publication, with the burden of proof on claimants: Stocker v Stocker [2018] EWCA Civ 170.

The court held that a party published defamatory comments about her ex-husband to the third parties who read them when she posted them on a Facebook Status Update of his new partner, even though she had not turned her mind to the question of who else might see her comments.

In addition, the court rejected an argument that a Facebook user’s ability to remove or restrict his or her friends’ access to comments means that publication of the comments is a republication because the user is “actively involved” in the publication.

Although this decision concerns publication in the context of Facebook, it has potential relevance to other online networks or platforms.

Alan Watts, Partner, and Zoe Wood, Associate (Australia), in our London disputes team consider the decision further below.

Background

The appellant and respondent divorced acrimoniously in 2012 after 13 years of marriage. In late November or early December 2012, the appellant sent a Facebook friend request to the respondent’s new partner, Ms Bligh, which Ms Bligh accepted.

A Facebook user may post a Status Update, which appears on his or her Facebook “wall”. Under the default Facebook settings, content on a user’s wall is visible to all of his or her Facebook friends.

On 23 December 2012, the appellant posted a comment on Ms Bligh’s Status Update, which prompted an exchange of comments. Shortly after, Ms Bligh posted a further Status Update, inviting the appellant to call her, and a further exchange of comments ensued on that Status Update.

The respondent’s defamation claim was based on the following comments which the appellant posted on Ms Bligh’s second Status Update:

Appellant: “I hear you have been together 2 years? If so u might like to ask him who he was in bed with the last time he was arrested…”
Appellant: “…Wouldn’t bring it up last time I accused him of cheating he spent a night in the cells, tried to strangle me. Police don’t take too kindly to finding your wife with your handprints round her neck. But don’t worry you will get a nice watch for Christmas!”
Ms Bligh: “why did terry get arrested?”
Appellant: “…Which time?”
Ms Bligh: “why has he been arrested???”
Appellant: “Well u know about him trying to strangle me, then he was removed from the house following a number of threats he made and some gun issues I believe and then the police felt he had broken the terms of the non molestation order.”
Appellant: “All quite traumatic really”

At first instance, Mr Justice Mitting in the High Court held that:

  1. defamatory meaning could be inferred from the comments;
  2. the appellant published the defamatory comments to the third parties who read them on Ms Bligh’s Facebook wall; and
  3. the defences relied on by the appellant, including the defence of justification, were not made out.

Decision

The Court of Appeal dismissed the appeal, upholding the trial judge’s findings as to the defamatory meanings, the defence of justification and the fact of publication.

This post only considers the Court of Appeal’s assessment of the third issue, regarding publication.

It was common ground that the comments posted by the appellant on Ms Bligh’s Status Updates were visible to Ms Bligh’s Facebook friends. However, it was disputed whether the appellant had, for the purposes of liability in defamation, published the comments to those third parties who read them.

The appellant knew that the comments she posted on Ms Bligh’s first Status Update were visible to Ms Bligh’s Facebook friends. However, the appellant claimed that she believed that the comments she subsequently posted on Ms Bligh’s second Status Update, in which Ms Bligh invited the appellant to call her, were private because that Status Update addressed her and the exchanges appeared in a different format on her phone.

In relation to the comments posted by the appellant on Ms Bligh’s second Status Update, the trial judge found that the appellant did not “[give] a moment’s thought to the fact that their exchanges were being conducted in a semi-public arena accessible to all Ms Bligh’s Facebook friends.”

Based on that finding, the appellant argued that the trial judge erred in law when he found that the appellant was responsible for publishing the comments on Ms Bligh’s second Status Update, relying on observations made by Laws LJ in the republication case of Terluk v Berezovsky [2011] EWCA Civ 1534.

The appellant submitted that to “rebalance the law more fairly in favour of defendants”, in order for a person to be liable for publication or republication, there should be a knowledge or negligence based test, with the burden of proof resting on the claimant. In other words, the appellant would need to intend or be negligent as to the publication of her comments to third parties.

The court rejected the argument that a Facebook user’s ability to remove or restrict access to comments by adjusting his or her settings or deleting content means that publication of the comments is a republication because the user is “actively involved” in the publication. The court upheld the trial judge’s finding that when an individual posts a comment on another’s Facebook wall, that individual publishes the comment to every third party who reads it; it is akin to posting something on a noticeboard, albeit an electronic version.

The court rejected the notion that there is a need to rebalance the law more fairly in favour of defendants. The court observed that the reliance on Terluk was inapt because it was a case concerning republication (rather than publication) and the observations of Laws LJ were merely obiter dictum and lacked “the benefit of fuller argument…There is no basis therefore to contend that what was said represents the law with regard to republication, still less that it should apply more broadly.”

The law of defamation recognises that in some circumstances, where certain threshold requirements are met, a publisher of defamatory content can be held liable for the republication of that content by a third party. The court noted that the law draws a distinction between publication and republication and rejected the submission that there should be a common test “across the board”.

The court observed that there is a delicate balance to be struck between the right to reputation and the right to freedom of expression. The appellant’s submission that the law should be rebalanced to benefit defendants fails to take into account broader considerations, such as the rights of people whose reputations may be damaged by serious allegations made online.

The court concluded that it was not unjust to hold the appellant liable for publishing defamatory comments in circumstances where she posted them on a platform which she knew was semi-public without considering who else might see them.