The Supreme Court's recent decision in Stocker v Stocker  UKSC 17 reflects the English courts' increasingly sophisticated approach to defamation on social media. In a unanimous judgment, the Court allowed Ms Stocker's appeal and found that the allegation she made in a Facebook post, detailing that her former husband, Mr Stocker, had "tried to strangle (her)", would not have been taken to mean that he deliberately tried to kill her. The Court substituted a new meaning that he had grasped her by the throat and applied force to her neck. Given that Mr Stocker had in fact committed common assault, those words were true and therefore defensible.
The case followed a long journey to a new meaning. In the first instance, Mitting J, obliged to determine the "single right meaning" of the words complained of, confined himself to starkly opposing dictionary definitions of "strangle", ultimately arriving at the "higher" meaning of "tried to kill by strangulation". That meaning was then upheld by the Court of Appeal, which found Ms Stocker's comments to be a "significant and distorting overstatement" of what actually happened.
However, The Supreme Court found Mitting J had fallen into error by over-analysing the words and crucially forgetting the context in which they were published. Lord Kerr, giving the lead judgment, hailed the advent of a new class of reader, social media users, who "do not pause and reflect" but have an "impressionistic and fleeting" response to posts. This echoes the recent decision in Monir v Wood  EWHC (QB) 3525, in which Nicklin J noted that Twitter is a fast-moving medium where people tend to scroll through messages relatively quickly. Likewise in this case, Lord Kerr went on, anyone reading the post would not have interpreted it literally as alleging attempted murder: "If Mrs Stocker had meant to convey that her husband had attempted to kill her, why would she not say so explicitly? And, given that she made no such allegation, what would the ordinary reasonable reader, the casual viewer of this Facebook post, think that it meant? In my view, giving due consideration to the context in which the message was posted, the interpretation that Mr Stocker had grasped his wife by the neck is the obvious, indeed the inescapable, choice of meaning." At the same time, many would consider Mr Stocker's actions, including that he breached a non-molestation order and uttered threats to Mrs Stocker, "sufficient to establish that he was a dangerous and disreputable man".
The Supreme Court's decision is both sensible and a welcome reminder not to engage in over-elaborate analysis when determining meaning. It also confirms earlier findings that the ordinary reader on social media will not engage in the same way they would with, for example, a newspaper article. Where posts or Tweets are casual, the context of publication is critical.
Finally, it is worth noting that Ms Stocker did not appeal the earlier findings on responsibility for publication, which therefore stand. She posted her comments on the Facebook Wall of Mr Stocker's new partner, Ms Bligh, and initially claimed she was not responsible for the publication of those comments to third parties which amounted to republication. If so, Mr Stocker, as the claimant, would have the burden of proving that Ms Stocker was responsible for the repeated libel, either because she knew or ought reasonably to have foreseen that the post would be republished. However, Mitting J disagreed. He said The Wall was akin to an office notice board, so a comment posted on it would undoubtedly be published to anyone with access to the board who read it.
On first appeal, Lady Justice Sharp accepted that where a Facebook user restricts access to their Wall, or removes comments posted on it, he or she is "actively involved" in the publication of those comments, and it is appropriate to characterise the publication of such comments as a republication. In this case however, there was no such republication. When Ms Stocker posted the offending comments on Ms Bligh's Facebook Wall, they were instantly accessible to all of Ms Bligh's Facebook Friends, and she published her comments directly to every third party who read them. Sharp LJ's concluding remarks should give all angry posters pause for thought: "… [Ms Stocker] was the originator of the libel; she was aware that the particular Facebook platform concerned was a semi-public one and she deliberately posted on that platform without thinking about who else might see what she posted."