Fake News - Reynolds Report May 2019

In a famous operatic piece from the Barber of Seville, written in 1813, Gioacchino Rossini warns of the power of defamatory rumour (“la calunnia”) to grow from a gentle breeze (“venticello”) into an earthquake, leaving the unfortunate subject of the rumour (“il meschino calunniato”) trampled and degraded.   Little, it would seem, has been learned since that date…

(If you really want to get into the spirit of what follows you may want to listen to a well known rendition of this piece)

A recent judgment of the Supreme Court leads the author to question whether it will ever be possible to use the civil law to control the use of social media to spread gossip and misinformation:

Defamation is, in English law, the publication of a false statement which damages the reputation of an individual.  Defamatory statements in permanent form (written) are libel, those in non-permanent form (spoken) are slander.

The wrong of defamation is repeated each time a defamatory statement is re-published.

Why then has it not been possible to use the law of defamation to rein in abuse and misleading rumour ‘published’ on social media and, more particularly, to take effective action against the internet service providers (ISPs) who are both an essential element of the diffusion of this material and far more easily traceable (and economically attractive as defendants) than the original authors of the statements, particularly given the size of the audience and the famously permanent nature of statements made on social media?

Firstly, ISPs have been able to make use of a broad range of legal defences.

Use has been made of the Common Law defence of “innocent dissemination” – which requires the defendant to prove that they had no knowledge that what they published was defamatory had no reason to believe that the material would contain libel and that this lack of knowledge was not due to negligence on their part.

There are further defences provided for in legislation: s.1 Defamation Act 1996 and more recent statutory provisions, Regs 17 to 19 of the Electronic Communications Directive (EC) and Part 5 of the Defamation Act 2016.

The judgment in Stocker v Stocker [2019] UKSC 17 appears however to take this process even further by questioning the very mental state of those reading postings on social media.

In 2012 Mr and Mrs Stocker went through an acrimonious separation.  On 23 December 2012 Mrs Stocker communicated with her husband’s new partner, Ms Deborah Bligh, by way of an exchange over Facebook.

During that exchange Mrs Stocker claimed that Mr Stocker had “gun issues” had broken a non-molestation order and, crucially, had “tried to strangle” her.

Mr Stocker issued proceedings for defamation.

The High Court found in Mr Stocker’s favour.  Mrs Stocker appealed.

The Court of Appeal rejected the appeal.  Mrs Stocker obtained permission to appeal to the Supreme Court.

And on 3 April 2019, before reaching the entirely sensible conclusion that – in light of the provisions of section 5 of the Defamation Act 1952 (now replaced by s.2(3) Defamation Act 2013) – given the series of allegations which Mrs Stocker had been successful in establishing as truthful, her defence of justification should not fail by reason only that the truth of every allegation put forward is not proven, the Supreme Court made some what must be considered rather more dubious comments about the creation of a “new class of reader” – and the manner in which statements made on social media are to be considered.

Citing with favour the judgment of Warby J in Monroe v Hopkins [2017] 4 WLR 68:

“… this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; an impressionistic approach is much more fitting and appropriate to the medium; …”

This appears however to fly in the face of statutory provision, in which the key distinction is between permanent and non-permanent statements rather than calling into play “the manner in which they are read.”

No doubt further debate will ensue on the subject.

Further Reading:

Time to cool off?

J.R.R. Tolkien and Literary Executors

What are alphabet shares and why you may want to have them – The Reynolds Report

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