High Court finds tweets caused "serious harm" for purposes of claim in defamation

On 10 March 2017, the High Court held that two tweets written by Katie Hopkins (a well-known columnist for The Sun with 570,000 Twitter followers at the time) caused real and substantial distress to Jack Monroe (a food blogger and writer) as well as serious harm to her reputation: Jack Monroe v Katie Hopkins [2017] EWHC 433 (QB).

Ms Monroe was awarded £24,000 damages plus costs. With regards to costs, Ms Hopkins has been ordered to pay an initial £107,000 with a final figure to be assessed.

The decision is of particular interest as it is one of the few cases in which the court has examined the "serious harm" threshold at Section 1 of the Defamation Act 2013. This case provides guidance, in the context of a claim by an individual claimant, that reputation does not need to suffer gravely; serious harm with substantial distress is enough to meet the threshold. The decision leaves open the question of what amounts to serious harm for a corporate.

Alan Watts, Rebecca Murtha and Sara Scott in our media disputes team consider the case and its implications for Twitter libel cases further below.

Background

On 18 May 2015, Ms Hopkins posted two tweets which were found to have wrongly accused Ms Monroe of vandalising a war memorial or approving of such behaviour.

In the first of her tweets, Ms Hopkins asked Ms Monroe if she had "scrawled on any memorials recently" or "vandalised the memory of those who fought for your freedom". Ms Monroe denied such things and requested that Ms Hopkins delete the "lie". Ms Monroe also asked for a public apology and a £5,000 donation to charity or else she would take legal action.

Two hours after the initial tweet, Ms Hopkins deleted it but posted another one comparing Ms Monroe to Laurie Penny, a journalist who had previously been criticised for showing support for an anti-government slogan painted onto the Memorial to the Women of WWII in Whitehall.

Twelve days after the initial tweets, on 2 June 2015, Ms Hopkins tweeted (at 7am) that she had confused Ms Monroe with someone else and had "got it wrong". However, she refused to issue a public apology or retract the allegation.

Following further correspondence between the parties, proceedings were issued in December 2015.

Decision

As noted above, the High Court found Ms Hopkins liable in defamation and ordered her to pay Ms Monroe £24,000 damages plus costs. Mr Justice Warby came to the following conclusions:

• Ms Hopkins wrote two tweets which held the meaning that Ms Monroe condoned and approved of scrawling on war memorials and vandalising monuments commemorating those who fought for her freedom.
• The tweets had meanings with a defamatory tendency and were published to thousands.
• The publications caused Ms Monroe real and substantial distress and also harmed her reputation in a serious way, albeit not a very serious or grave way. This was sufficient to meet the requirement for "serious harm" under section 1 of the Defamation Act 2013.
• Ms Monroe was entitled to fair and reasonable compensation which was set at £16,000 for the first tweet and £8,000 for the second tweet.

"Serious harm"

In considering the serious harm requirement, Warby J referred to Dingemans J's comments in Sobrinho v Impresa Publishing SA [2016] EMLR 12 [46-50] including that "serious" should be given its ordinary meaning and that serious harm must be assessed on a balance of probabilities. Warby J stated:

"I have reached the clear conclusion that the Serious Harm requirement is satisfied, on the straightforward basis that the tweets complained of have a tendency to cause harm to this claimant’s reputation in the eyes of third parties, of a kind that would be serious for her."

The judgment made the following points about the case in considering the serious harm requirement:

• The publication was estimated to have been viewed by 25,000 people (although deleting the tweet meant that accurate Twitter analytics were not available).This led to the rejection of the idea that the first tweet had a limited extent.
• The fact that the first tweet was deleted two hours after publication did not detract from the impact that the message had.
• Ms Hopkins made clear on her Twitter profile that she was a Sun columnist. This contributed to the credibility of the publication.
• Ms Monroe received some abuse as a result of the tweets and this reflected the harm to her reputation.
• People can have a low opinion of another, and yet the other's reputation can still be harmed by a fresh defamatory allegation.
• Ms Monroe's responses, which made her position clear, did not mitigate harm as denials are not to be considered comparable to corrections, retractions or apologies. Moreover, in the context of Twitter, Ms Monroe had no access to the followers of Ms Hopkins.
• The national and international media coverage of the tweets did not amount to an authoritative or comprehensive refutation of the original allegation as the majority of the media coverage was in left-wing publications which were not likely to have a substantial overlap with Ms Hopkins's readership.
• Although Ms Hopkins did issue a tweet acknowledging her mistake, this happened two weeks later, it was not self-explanatory, it was inconspicuous and it carried no apology.

Looking forward

• The outcome here could lead to more Twitter libel cases being brought in the courts and a bar has been set for damages.
• When considering the defamatory potential of tweets, one must take an impressionistic approach that takes account of the whole tweet and the context in which the ordinary reader would read that tweet. The context may create a different meaning to the literal meaning of the words.
• Although tweets may be transient in that they can be deleted or disappear from the reader's view as time goes on, it should be noted that the impact of the message is more important than the period of time for which people are exposed it.
• Damages calculations may take into account the fact that harm to reputation was ongoing and/or injury to feelings was increased by any delay or the behaviour of the defendant. If faced with a similar defamation claim, it would be sensible to issue a prompt apology and retraction. It is unlikely that the case would have made it to trial if Ms Hopkins had retracted the tweet and issued an apology.
• Any litigant should take care to retain and preserve material that may become disclosable, and their solicitor has a responsibility to make them aware of this fact. In the context of Twitter, special care should be taken when deleting tweets not to lose the important Twitter analytics data that is stored with each one.
• Ms Hopkins had previously claimed that Twitter was the "Wild West" where anything goes and users could engage in uninhibited debate. This is clearly no longer the case and anyone using Twitter will need to be aware of the potential for defamation claims.
• The appendix to the judgment contains a useful guide for social media beginners explaining how Twitter works.