Twitter libel ruling vindicates TV presenter

Rachel Riley v Laura Murray

The Court of Appeal’s judgment was handed down in August 2022 in Laura Murray’s appeal against the ruling of Mr Justice Nicklin in Rachel Riley’s (pictured above) libel claim. The appeal was unanimously dismissed by the Court of Appeal, with £10,000 falling due to Riley. 

Parties

The claimant is a television presenter who appears on the Channel 4 programme, Countdown. She was a regular Twitter user and had some 625,000 followers as at March 2018. She has spoken publicly to condemn what she regarded as the fostering of antisemitism in the Labour Party under Jeremy Corbyn. The defendant was the stakeholder manager for Jeremy Corbyn in March 2019. She too was a Twitter user, with some 7,252 followers.

Background

The claim concerns a tweet posted by the defendant about the claimant in response to a tweet by the claimant concerning the ‘egging’ of Jeremy Corbyn. The background is as follows: on 10 January 2019, a well-known journalist and prominent Labour supporter, Owen Jones, posted a message on Twitter referring to an incident in which an egg had been thrown at Nick Griffin, the former leader of the British National Party:

‘Oh: I think an egg was thrown at him actually. I think sound life advice is, if you don’t want eggs thrown at you, don’t be a Nazi. Seems fair to me’.

Later that year, on 3 March 2019, the then leader of the Labour Party, Jeremy Corbyn, was assaulted with an egg while he was visiting the Finsbury Park Mosque. The assailant was detained and subsequently arrested.

That evening, the claimant re-posted Owen Jones’s tweet from 10 January 2019 with the comment ‘Good advice’, together with two emojis: that of a rose and an egg. This was known as the ‘Good Advice tweet’ or ‘GAT’ in the proceedings. The claimant was referring to the incident involving the assault on Corbyn earlier that afternoon, but only a reader of the GAT who was aware of the assault on Corbyn would have understood the reference from the claimant’s use of the egg, and a rose, to depict the Labour Party.

The GAT reached a wide audience, receiving over 1.5m impressions. The defendant saw the GAT and posted her own tweet in reply stating: ‘You are publicly encouraging violent attacks against a man who is already a target for death threats. Please think for a second about what a dangerous and unhealthy role you are now choosing to play in public life’ (the reply tweet).

The claimant did not reply to the reply tweet and the defendant posted further tweets that evening, including the tweet which is subject to the claimant’s complaint (the defendant’s tweet) that stated: ‘Today Jeremy Corbyn went to his local mosque for Visit My Mosque Day, and was attacked by a Brexiteer.

‘Rachel Riley tweets that Corbyn deserves to be violently attacked because he is a Nazi.

‘This woman is as dangerous as she is stupid. Nobody should engage with her. Ever.’

The claimant sued for defamation.

High Court claim

The claim was commenced on 31 May 2019. A trial of preliminary issues took place to determine:

1. the natural and ordinary meaning of the defendant’s tweet;
2. whether it conveyed a statement of fact or expression of opinion; and
3. whether the meaning found was defamatory of the claimant.

Mr Justice Nicklin handed down his judgment on the preliminary issues on 24 April 2020, ruling that the defendant’s tweet meant that:

1. Jeremy Corbyn had been attacked when he visited a mosque.
2. The claimant had publicly stated in a tweet that he deserved to be violently attacked.
3. By so doing, the claimant has shown herself to be a dangerous and stupid person who risked inciting unlawful violence. People should not engage with her.

He found that paragraphs (1) and (2) were statements of fact, while paragraph (3) was an expression of opinion. He ruled that paragraphs (2) and (3) were defamatory of the claimant at common law.

At the trial of the action the defendant denied that the publication of those imputations had caused or were likely to cause serious harm to the claimant’s reputation pursuant to section 1 of the Defamation Act 2013 (the act). Nicklin J disagreed, finding for the claimant.

In the alternative, the defendant relied on the defence of truth in so far as the factual allegations were concerned, and argued that the opinion found was honestly held. She also argued that the defendant’s tweet as a whole was a statement on a matter of public interest, the publication of which she reasonably believed to be in the public interest.

In his judgment, Nicklin J found that the claimant’s defences of truth and honest opinion failed. The defence of public interest also failed; the claimant had not shown her honest belief that the publication of her tweet was in the public interest was reasonable.

The claimant was awarded damages in the sum of £10,000. The sum awarded was reduced by two important findings:

• the GAT was ambiguous, and the claimant was aware of this, so that posting it was ‘provocative, even mischievous’ conduct which posed an obvious risk of misunderstanding and hostile reaction; and
• it was ‘not a case in which the damages award has an important role to play in vindicating the claimant’s reputation’ – the vindication to which the claimant was entitled would be made clear by the judgment and reporting of it.

Appeal

While the High Court refused the defendant permission to challenge its assessment of damages, it granted her permission to appeal against Nicklin J’s rejection of the statutory defences.

By way of a respondent’s notice the claimant asked the Court of Appeal to uphold Nicklin J’s decision on additional or alternative grounds. These include an invitation to reverse findings which Nicklin J made in favour of the defendant on certain elements of the statutory defences.

Truth

Section 2(1) of the act provides that ‘It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true’. The relevant ‘imputation’ for these purposes was the factual allegation which the judge had identified at the preliminary trial that ‘the claimant had publicly stated in a tweet that [Mr Corbyn] deserved to be violently attacked’ (the factual allegation).

Nicklin J held that the defendant’s tweet was not substantially true because it failed to reflect the ambiguity of the GAT.

The defendant challenged Nicklin J’s ruling on two grounds, arguing:

• His approach was wrong in law because the question for the court was ‘whether a section of the audience could reasonably have understood the GAT to contain the meaning stated’ in the defendant’s tweet. She said that she was entitled to succeed on this point because on Nicklin J’s own findings, a section of the audience could (and did) reasonably interpret the GAT in this way.
• His approach was wrong in fact because, on his own findings, ‘the GAT did contain the meaning stated’ in the defendant’s tweet, which was enough for a finding of substantial truth.

As to the first point, Mr Justice Warby, who gave the leading judgment in the Court of Appeal, confirmed that the court ‘should proceed on the footing that the GAT was ambiguous in the way that [Nicklin J] identified and that the factual allegation was in substance one of the reasonable meanings of the GAT’.

As to the second point, the key issue was that the single defamatory factual allegation conveyed by the defendant’s tweet had to be proved true. Warby LJ ruled that Nicklin J’s ‘judgment as a whole makes clear that the factual allegation was an imputation that the claimant had made an express statement; it did not encompass a possible implicit meaning to similar effect’. Warby LJ held that ‘In my view it is clear that the factual allegation was not literally true’.

The Court of Appeal found that Nicklin J had applied the correct legal principles on truth and upheld his decision.

Honest opinion

Section 3 of the act provides that it is a defence to an action for defamation for the defendant to show that the following conditions are met:

‘(2) The first condition is that the statement complained of was a statement of opinion.

(3)  The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.

(4)  The third condition is that an honest person could have held the opinion on the basis of (a) any fact which existed at the time the statement complained of was published; (b) anything asserted to be a fact in a privileged statement published before the statement complained of.

(5)  The defence is defeated if the claimant shows that the defendant did not hold the opinion.’

The opinion that had to be defended was that, ‘By so doing, the claimant has shown herself to be a dangerous and stupid person who risked inciting unlawful violence. People should not engage with her.’ (The opinion.)

In the High Court, Nicklin J rejected the defendant’s submission that, on the true construction of s.3(4)(a) of the act, it was enough for her to prove that an honest person could have expressed the opinion based on the terms of the GAT, and that reaction to the GAT demonstrated that an honest person could have expressed the opinion. Nicklin J noted that the well settled position of the common law was that ‘if the alleged facts relied on as the basis for comment turn out to be untrue, a plea of fair comment avails the defendant nothing’.

The defendant argued that Nicklin J was wrong to rely on the common law to give s.3(4)(a) of the act a construction which its words do not bear.

The defendant’s appeal failed on this aspect as the opinion that had to be defended was that ‘by so doing the claimant has shown herself to be a dangerous and stupid person who risked inciting unlawful violence’ and ‘people should not engage with her’. ‘By so doing’ was said by Warby LJ to be shorthand for ‘by publicly stating in a tweet that Jeremy Corbyn deserved to be violently attacked’. Warby LJ agreed with Nicklin J that the fact that the opinion was expressly (and, in Warby LJ’s view, exclusively) premised on the truth of the factual allegation meant that the defence of honest opinion could not survive the failure of the defendant’s case on the issue of truth.

Public interest

Before Nicklin J in the High Court, the defendant needed to positively answer three questions in order to satisfy the public interest defence outlined at s.4 of the act:

1. Was the statement complained of on a matter of public interest, or did it form part of such a statement?
2. If so, did the defendant believe that publishing the statement complained of was in the public interest?
3. If so, was that belief reasonable?

Nicklin J found for the defendant on the first issue, noting that the GAT was published on a public platform (Twitter) and was intended by the claimant to be read both by her large number of followers and more widely. The claimant was also aware that the GAT was likely to provoke public comment and engagement.

Nicklin J was also satisfied that the defendant had demonstrated the second element of the section 4 defence. However, he held that the defendant failed to satisfy the third issue, namely that her belief was reasonable. The defendant challenged this aspect of Nicklin J’s ruling on the grounds that he:

• wrongly required her to give a true description of the meaning of the GAT, rather than a reasonable and honest description;
• failed to take into account the series of steps which she took to arrive at her belief that publication was in the public interest, instead regarding her conduct as impetuous;
• failed to make proper allowance for editorial judgement; and
• failed to take account of the provocative nature of the claimant’s conduct.

By way of her respondent’s notice, the claimant contended that Nicklin J’s rejection of the defendant’s section 4 defence should be upheld on additional or alternative grounds; namely (i) that he should have held that the defendant failed on the first issue because the propriety or otherwise of the claimant’s conduct in posting the GAT was not capable in law of being a matter of a public interest; and/or (ii) the defendant’s belief was not reasonable because she could not reasonably have believed that the defendant’s tweet was true.

As to the first condition to be satisfied in s.4 of the act, Warby LJ agreed that the defendant’s tweet was a statement published on a matter of public interest. He rejected the claimant’s argument to the contrary as ‘wholly artificial’, noting: ‘She is not an obscure private individual, nor was this some kind of private joke at Owen Jones’ expense that had nothing to do with the public at large. The claimant was not chatting privately with friends. She chose instead to use a public platform to address a readership that exceeds that of most if not all national newspapers. And she did so on a political topic. She was, as the defendant’s reply tweet put it, choosing to play a role in public life.’

The second condition was not contested before the Court of Appeal, but as to the third condition, Warby LJ upheld Nicklin J’s decision that, although the defendant honestly believed the GAT to convey the factual allegation, it was nevertheless unreasonable for her to believe that it was in the public interest to say what she did in the defendant’s tweet. The GAT was ambiguous, and the defendant’s honest belief that the GAT conveyed the factual allegation was unreasonable.

In this connection, Warby LJ noted that the claimant did complain about the defendant’s initial reply tweet, which was plainly an expression of opinion that fully and accurately indicates its basis. He commented that it was hard to understand why the public interest could be thought to justify repetition of substantially the same defamatory messages in the form of the defendant’s tweet, but without the source material.

Warby LJ also saw no merit in the argument that Nicklin J ‘failed to take account of the steps the defendant took to arrive at her belief that publication was in the public interest’, noting that he had little need to do so, when he accepted that the belief was honest, and the single ground on which he held it to be unreasonable was a failure to reflect an obvious and important ambiguity.

The appeal was unanimously dismissed by lord justices Warby, Dingemans and Arnold.

Comment

The judgment is an important vindication for the claimant and is one of an increasing number of libel cases we are seeing before the courts pertaining to statements made on social media. In this case, Twitter. As is so frequently the case, the damages award of £10,000 to Ms Riley will be eclipsed by the legal costs incurred by both parties.

 

Elizabeth Wiggin is a senior associate at Wiggin, London