The online world is subject to increased scrutiny, and politicians are looking at ways in which the internet might be regulated. But the law still applies to the online world. Defamation law is an area of law that is referred to more than most.
The recent decision of Stocker v Stocker [2019] UKSC 17 is a useful example of the importance of context when considering whether or not something is defamatory. In that case in a Facebook exchange the defendant stated that during their marriage the claimant had “tried to strangle” her, that he had been removed from the house after making threats and that the police felt that he had broken the terms of a non-molestation order. The claimant brought a claim for defamation.
Justification
He did not deny that he had grasped the defendant by the neck and that he had breached a non-molestation order, but contended that the statement that he had “tried to strangle” the defendant bore the meaning that he had tried to kill her and that the other statements bore the meaning that he was a dangerous and thoroughly disreputable man.
The defendant contended, among other things, that the statement that the claimant had tried to strangle her meant that he had violently gripped her neck, inhibiting her breathing so as to put her in fear of being killed.
The defence was one of "justification", that is, that the statements were true.
The judge decided in favour of the claimant, because
(i) having regard to the dictionary meaning of “strangle”, the defendant's statement that the claimant had “tried to strangle” her bore the meaning that he had tried to kill her;
(ii) that the other statements bore the meaning that he was dangerous to any woman with whom he had lived or might live; and
(iii) that these meanings could not be justified.
Facebook context
The case went to the Supreme Court, and there the court decided that the fact that this was a Facebook post was critical.
The court said:
"The advent of the 21st century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read."
The court referred to cases involving Twitter:
"42. In Monroe v Hopkins [2017] 4 WLR 68 , Warby J at para 35 said this about tweets posted on Twitter:
“The most significant lessons to be drawn from the authorities as applied to a case of this kind seem to be the rather obvious ones, that this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter.”
I agree with that, particularly the observation that it is wrong to engage in elaborate analysis of a tweet; it is likewise unwise to parse a Facebook posting for its theoretically or logically deducible meaning. The imperative is to ascertain how a typical (i e an ordinary reasonable) reader would interpret the message. That search should reflect the circumstance that this is a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre-eminently one in which the reader reads and passes on."
It concluded:
"49. I return to the ordinary reader of the Facebook post. Such a reader does not splice the post into separate clauses, much less isolate individual words and contemplate their possible significance. Knowing that the author was alive, he or she would unquestionably have interpreted the post as meaning that Mr Stocker had grasped his wife by the throat and applied force to her neck rather than that he had tried deliberately to kill her."
Identifying meaning
What people say, and what they mean might be two completely different things.
Here the consequence of poorly chosen words was a long journey to the Supreme Court.
It is however of interest in the context of continued efforts to regulate behaviour online.
If it is this difficult to determine what something means, how are regulators going to decide what material to remove and what to leave?