Defamation / Reputation
Afanasyev v. Zlotnikov
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The High Court of England and Wales found tabloid columnist Katie Hopkins liable in defamation for publishing two tweets that referred to the food blogger and political activist Ms. Jack Monroe. In her defamation claim against Ms. Hopkins, Ms. Monroe alleged that the tweets conveyed the meaning that she had either vandalized a war memorial during an anti-government protest, or condoned such behaviour. The High Court accepted the second meaning advanced by Ms. Monroe, and found the tweets to have caused “serious harm” to her reputation. The High Court ordered Ms. Hopkins to pay £24,000 in compensatory damages to Ms. Monroe.
In May 2015, a memorial commemorating the women of World War II was vandalized during an anti-austerity demonstration held in London following the General Election. An offensive political slogan was spray painted across the plinth of the memorial. This act caused public outrage and widespread condemnation. Laurie Penny, a columnist for the New Statesman magazine, published a tweet on the same day as the demonstration saying “I don’t have a problem with this. The bravery of past generations does not oblige us to be cowed today.” [para. 14] This tweet included a photograph of the vandalised memorial. This tweet prompted Ms. Hopkins to post a series of tweets denouncing Ms. Penny and her statements.
Over a week later, on May 18, 2015, Ms. Hopkins published two tweets that were directed at Jack Monroe, a food blogger and political activist. The first tweet stated: “@MsJackMonroe scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom. Grandma got any more medals?” [para. 17] (the First Tweet). Ms. Monroe then posted three tweets in response to the First Tweet in which she denied any involvement in the vandalism, asked Ms. Hopkins to delete “this lie”, and requested that she issue a public apology. In one of the tweets, Ms. Monroe mentioned that both her father and brother served in the military. Some time later that day, Ms. Hopkins deleted the First Tweet and posted the following tweet: “Can someone explain to me – in 10 words or less – the difference between irritant @PennyRed and social anthrax @Jack Monroe” (the Second Tweet). She then blocked Ms. Monroe from communicating with her via Twitter.
The feud between the two later produced extensive press coverage. On May 17, 2015, Ms. Monroe’s solicitors wrote a letter to Ms. Hopkins demanding (i) that she apologize on Twitter by posting a specific statement, (ii) that she donate to a charity of Ms. Monroe’s choice, and (iii) that she pay legal costs. Twelve days later, Ms. Hopkins posted a tweet that only partially reflected the statement specified in the solicitor’s letter. The tweet read: “@MsJackMonroe I was confused about identity. I got it wrong.”
Due to Ms. Hopkins failure to meet the demands, Ms. Monroe filed defamation proceedings to the High Court of England and Wales in December 2015.
The judgment of the High Court of England and Wales (Court) was delivered by Mr. Justice Warby. In its judgment, the Court found Ms. Hopkins liable in defamation and ordered her to pay £24,000 in damages.
The Court reiterated that a libel will occur where there is a “publication by the defendant to one or more third parties of a statement about the claimant which has a tendency to defame the claimant, and causes or is likely to cause serious harm to the claimant’s reputation.” [para. 23]
The Court began by considering the meaning of the relevant tweets. The Court noted that most cases turn on the “natural and ordinary meaning”, which is the meaning that an ordinary reasonable reader would take from a statement. However, in cases where readers are aware of extraneous facts that would affect the way that an “ordinary reasonable reader” would understand the statement, this will give rise to an “innuendo meaning”. In this case, Ms. Monroe was relying on a “natural and ordinary meaning” for her claim in relation to the First Tweet, and an “innuendo meaning” for her claim in relation to the Second Tweet.
The Court reiterated the principles governing the determination of meaning in defamation cases. These principles required that the Court take a reasonable and neutral approach to what a “hypothetical reasonable reader” would understand, taking into account all the circumstances. The Court accepted that a tweet was part of a “multi-dimensional conversation”, which required an “impressionistic approach” that takes into account the whole tweet and the context in which the ordinary reasonable reader would have read that tweet. The Court noted that this context would include “(a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter.” [para. 35] The Court clarified that it would find a matter to be of ordinary general knowledge where “it was so well-known that, for practical purposes, everybody knew it.” [para. 37] As applied to the present dispute, the Court accepted that the ordinary readers of Ms. Hopkins’ tweets had information that a war memorial had been sprayed with offensive graffiti. The Court further clarified that a matter can be treated as part of the context of an offending tweet “if it is on Twitter and sufficiently closely connected in time, content, or otherwise that it is likely to have been in the hypothetical reader’s view, or in their mind, at the time they read the words complained of.” [para. 38] In this case, this was held to include the characteristics of Ms. Hopkins and Ms. Monroe, the nature of Twitter, and the immediately surrounding contextual material on Twitter.
By applying the above principles, the Court concluded that the First Tweet carried the “natural and ordinary meaning” that “Ms. Monroe condoned and approved of scrawling on war memorials, vandalising monuments commemorating those who fought for her freedom.” The Second Tweet was found to have the “innuendo meaning” that “Ms. Monroe condoned and approved of the fact that in the course of an anti-government protest there had been vandalization by obscene graffiti of the women’s war memorial in Whitehall, a monument to those who fought for her freedom”. The Court noted that readers with knowledge of the “innuendo facts” surrounding the Second Tweet will also have understood that Ms. Hopkins’ Second Tweet was acknowledging that she mistook Ms. Monroe for Ms. Penny. However, the Court concluded that this did not make a difference because the Second Tweet was “defiant” and suggested that Ms. Monroe also approved of and condoned the vandalism.
The Court then went on to address the question of whether the meaning of the tweets had a defamatory tendency. According to the Court, a statement has a defamatory tendency as a matter of law if it is contrary to “common, shared values of our society.” [para. 50] The Court concluded that “respect for those who gave their lives, or put themselves in danger, or played roles in the World Wars is a significant aspect of the shared values of our society.” [para. 52] In light of this, the Court found Ms. Hopkins’ tweets to have a defamatory tendency. The Court then held that the scale of publication of the tweets was substantial.
It was left to the Court to determine whether the tweets had caused “serious harm”, which was an element that needed to be established before an individual could be fixed with liability for defamation under the Defamation Act 2013.
The Court accepted that Ms. Monroe felt upset, frustrated, and anxious following the tweets. However, the Court also recalled that serious harm to reputation cannot be established by mere evidence of an injury to the claimant’s feelings. The Court noted that it would not always be necessary to conduct a detailed forensic examination of the facts to establish “serious harm”. It went on to say that “[w]here an allegation has a seriously defamatory tendency and is widely published a claimant may choose to rely on those facts alone, perhaps in conjunction with evidence as to the identity of the publishees, as the basis for an inference that serious harm was actually caused.” [para. 69] The Court found that the “serious harm” requirement had been met “on the straightforward basis that the tweets complained of have a tendency to cause harm to [Ms. Monroe’s] reputation in the eyes of third parties, of a kind that would be serious to her.” [para. 70]
Based on the foregoing, the Court found Ms. Hopkins liable in defamation. In its assessment of damages, the Court noted that the allegations were serious but not towards the top end of the scale, and that the publication was significant but not massive. The Court also noted that Ms. Hopkins had increased the injury to Ms. Monroe’s feelings by the way she had conducted her defence. On the other hand, the Court also considered the fact that Ms. Monroe was a public figure. In its assessment, the Court was mindful of the importance of keeping “all awards for libel in due proportion. To protect the fundamental right of free speech they must be no more than necessary to protect the right that has been interfered with”. [para. 76] The Court order that Ms. Hopkins pay £24,000 in compensatory damages.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision contracts expression through its application of defamation law to the Twitter context. The High Court of England and Wales had little difficulty in finding that the threshold requirement of “serious harm to reputation” under the Defamation Act 2013 had been met in this case. When first enacted, this threshold requirement was welcomed as a safeguard against frivolous or vexatious defamation claims being brought against individuals who are exercising their right to freedom of expression. However, as can be demonstrated by this case, this threshold requirement is not as high as many first envisaged as “serious harm to reputation” can be inferred from tweets that are widely published and have a seriously defamatory tendency, without an individual having to prove serious harm was actually caused. The High Court of England and Wales also rejected the claim that, given their conversational nature, tweets carry less authoritative weight than other forms of media and are, therefore, less likely to cause serious harm.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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