The claimant and the defendant were divorced in 2010. Subsequently an exchange took place on Facebook between the defendant and the claimant’s new partner, in which the defendant stated that during her marriage to the claimant he had “tried to strangle” her and that he had broken the terms of a non-molestation order. It was not denied by the claimant The claimant, who did not deny that he had grasped the defendant by the neck and that he had breached a non-molestation order, brought an action for libel against the defendant, alleging that the words “tried to strangle” meant “tried to kill” and were defamatory. The defendant denied that the words bore that meaning and pleaded justification. The judge referred to the dictionary meaning of “strangle” and gave judgment for the claimant, holding on the evidence that the claimant’s intention was to silence and not to kill, and that the Facebook posting was a distorting overstatement of what had in fact occurred and had the meaning that the claimant was a man who was dangerous to any woman with whom he lived. The Court of Appeal dismissed the defendant’s appeal.
On the defendant’s appeal—
Held, allowing the appeal, (1) that, where a statement had more than one plausible meaning, the question of whether it was defamatory would only be answered by the judge deciding that one particular meaning should be ascribed to it; that the touchstone was what the ordinary reader would consider the words to mean, and the primary role of the court was to focus on how the ordinary reader would construe the words; that in order to fulfil that obligation the court should be particularly conscious of the context in which the statement had been made and consider the hypothetical reader to be a person who would read the publication and react to it in a way which reflected the circumstances in which it had been made; that a critical circumstance in the present case was that the court was dealing with a Facebook post which was read by a certain type of reader and social media user; that in deciding how a Facebook posting would be interpreted by such a reader the judge had to keep in mind how such postings were made and read, and it was imperative to ascertain how a typical, ordinary, reasonable social media user would interpret the message; that it would be wrong to engage in an elaborate analysis of a Facebook posting or its theoretically or logically deducible meaning; that the meaning ascribed should reflect the circumstance that Facebook was a casual medium in the nature of a conversation rather than carefully chosen expression, and that it was pre-eminently one in which the reader read and passed on; that the judge had fallen into legal error in relying on the dictionary definition as dictating the meaning of the defendant’s Facebook post and had failed to conduct a realistic exploration of how the ordinary reader of the post would have understood it; that since the meaning determined by the judge had been reached by an impermissible route, his decision on the meaning could not stand; that in view of the judge’s error the Court of Appeal should have considered afresh the meaning of the post but it had not done so; and that it was therefore entirely appropriate for the Supreme Court to determine for itself the meaning of the defendant’s words.
(2) That the ordinary Facebook reader would not have spliced the defendant’s post into separate clauses or isolated individual words and contemplated their possible significance, but would unquestionably have interpreted the post as meaning that the claimant had grasped his wife by the throat and applied force to her neck rather than that he tried deliberately to kill her; that since it was not disputed that the claimant had grasped the defendant by the neck, breached a non-molestation and uttered threats, that was sufficient to establish that he was a dangerous and disreputable man; and that, accordingly, the defendant was entitled to succeed on the defence of justification.
David Price QC and Jonathan Price (instructed by David Price Solicitors & Advocates) for the defendant.
Manuel Barca QC and Claire Overman (instructed by SA Law llp, St Albans) for the claimant.