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“He tried to strangle me.” What would those words convey to the “ordinary reasonable reader” of a Facebook post?

30.04.2019 IP, Media and Tech

Robin Shaw

Robin Shaw Partner

Stocker v. Stocker [2019] UKSC 17

For the first time, the Supreme Court considers the meaning of words in the context of their publication on social media. 

The meaning of the words complained of in a libel dispute is at the heart of any defamation claim. 

The court is required to find a single or "right" meaning of the offending word(s), or a single or right meaning of each separate and distinct allegation within the words complained of.

The background facts

Mr S brought defamation proceedings against his ex-wife, Mrs S, claiming that the meaning of the words “tried to strangle me”, which Mrs S had posted on her Facebook wall about Mr S, meant that he had tried to kill her. Mrs S denied that they bore that meaning and claimed that they just meant that he had grasped her by the neck in such a way as to put her in fear of being killed.

At first instance, the judge referred to the Oxford English Dictionary, which provided two possible meanings for the verb “strangle”:

(a) to kill by external compression of the throat; and

(b) to constrict the neck or throat painfully.

Factually, having heard evidence (including from police officers), the judge decided that Mr S had intended to silence but not to kill his wife.

Addressing the meaning of the offending words, and crucially, referring to the dictionary definitions, the judge said that if Mrs S had said “he strangled me”, an ordinary reader would have understood her to mean painful constriction of the neck (as opposed to actually killing her on account of her having survived to tell the tale). However, because Mrs S said that he had “tried” to strangle her (a less serious accusation), she was fixed with the allegation that her husband had tried to kill her. This result was the product of confining the meaning of the words exclusively to two dictionary definitions. The judge, therefore, concluded that the phrase meant Mr S had attempted to kill Mrs S. As she had not proved that he had, her defence of justification/truth failed.

On appeal, the Court of Appeal stated that use of dictionaries does not form part of the process of determining the meaning in libel actions. Nevertheless, in this case, no harm had been done as the judge had only used the dictionary definitions as a check. It, therefore, dismissed the appeal.

The Supreme Court decision

On 3 April 2019, the Supreme Court overturned that ruling, finding that anyone reading the post would not interpret it in such a literal way. As precisely put by the Supreme Court; “Anyone reading this post would not break it down in the way that Mitting J (the first instance judge) did by saying, well, strangle means either killing someone by choking them to death or grasping them by the throat and since Mrs Stocker is not dead, she must have meant that her husband tried to kill her - no other meaning is conceivable”. The Supreme Court ruled that the words had the lower meaning intended by Mrs S i.e. as referred to above.

The Supreme Court then turned to whether the defence of substantial truth could apply in Mrs S’s favour. The Court held that the ordinary reader would consider Mr S's actions, including that he breached a non-molestation order and uttered threats to Mrs S, "sufficient to establish that he was a dangerous and disreputable man". In other words, Mrs S was able to successfully defend the claim by establishing the truth of her allegations in the lower meaning determined by the Supreme Court, without having to also demonstrate that Mr S had actually intended to kill her.

Comment

Until 2013, libel cases were traditionally heard by juries. The almost complete abolition of jury trial means that the task of choosing a single or “right” meaning now falls to the judge alone. However, the fact that this was a Facebook post was clearly critical to the decision of the Supreme Court. This is because the advent of the 21st century has brought with it a new class of reader: the social media user. The judge’s failure to reflect the context in which the words were written (i.e. on social media, which is of course conversational in nature) was wrong.

This case is an important reminder of the Court’s duty to step aside from a purely literal approach and to inhabit the new world of the social media user.

This article was written with the assistance of Lola Akinloye.

Article authors:

Robin Shaw