Stocker v Stocker[1]

It is hard to fathom that Facebook has only existed in the mainstream for ten-years. The social media platform has completely transformed how we interact with each other, both personally and professionally, and this has occurred in almost every country in the world. As of the fourth quarter of 2017, Facebook had 2.2 billion monthly active users[2].

There is no doubt Facebook has many positive qualities, for example, it is much easier to stay in touch with old friends when you move abroad. Visiting someone’s home after they have come back from an overseas trip no longer results in having to spend two boring hours smiling haplessly as you are shown your host’s collection of holiday snaps (or worse, slides, for readers old enough to remember this unique form of torture). Now you can simply click the ‘Like’ button on the photos they have uploaded on Facebook.

However, research shows Facebook does have negative consequences, especially for young people. A report, titled “Association of Facebook Use with Compromised Well-Being: A Longitudinal Study,” published in the American Journal of Epidemiology[3], showed that regular use of Facebook can have a negative effect on a person’s overall well-being.

In addition, we now have to deal with ‘stranger shaming’ on pages such as ‘Women Who Eat On Tubes’ and revenge porn. Indeed, now that everyone has the ability to film or photograph your actions at any time, one could argue the risk of facing ostracisation and/or public humiliation following your actions is more pronounced now than in Victorian times.

Defamation, like most laws, is slow to catch up to modern practices. However, the recent Court of Appeal case of Stocker v Stocker provided guidance as to a person’s responsibilities regarding defamatory content posted on their Facebook wall.

The appellant and the respondent had been married to each other for 13 years and had divorced in 2012.

The appellant had made a “friend request” to the respondent’s new partner (B) on Facebook, which was accepted. A lengthy exchange of comments took place on B’s Facebook wall, in which the appellant referred to the respondent having been arrested and stated that he “tried to strangle me”. The judge at first instance found the comments made by the appellant defamatory. He referred to dictionary definitions of the word “strangle”, which included “to constrict painfully (of the neck or throat)”. He held that the use of the word “tried” would have led the reader to understand that the respondent had tried, but failed, to kill the appellant by compressing her neck. The judge concluded that the overall effect of the words used was that the respondent was a dangerous man.

The appellant appealed the decision claiming:

• the reference to the dictionary definitions had resulted in an overly literal approach without regard to the context of domestic abuse, and the judge had not been entitled to reach his conclusion as to “dangerousness” because the respondent himself had not attributed that meaning to the words;
• she believed that most of the comments had been made in private, so that she was not responsible for their publication to third parties who had read them.

The appeal was rejected.

The court held the trial judge had taken the correct approach when determining the natural and ordinary meaning of the words used by the appellant on her Facebook wall. He referred to the principles laid out in Jeynes v News Magazines Ltd[4] which Sir Anthony Clarke, Master of the Rolls, summarised as follows at paragraph 14 of the judgment:

“ (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any “bane and antidote” taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, “can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…” (see Eady J in Gillick v Brook Advisory Centres approved by this court [2001] EWCA Civ 1263 at paragraph 7 and Gatley on Libel and Slander (10th edition), paragraph 30.6). (8) It follows that “it is not enough to say that by some person or another the words might be understood in a defamatory sense.” Neville v Fine Arts Company [1897] AC 68 per Lord Halsbury LC at 73.”

Lady Justice Sharp then added that the use of dictionaries “does not form part of the process of determining the natural and ordinary meaning of words, because what matters is the impression conveyed by the words to the ordinary reader when they are read, and it is this that the judge must identify”.

According to the court, it was clear that the judge had taken proper account of the overall impression created by the appellant’s comments and the context in which they were made.

Regarding the issue of publication, Lady Justice Sharp stated that when the appellant posted her comments on B’s Facebook wall, they were instantly accessible to all of B’s Facebook friends, so that those comments had been published directly to every third party who read them.

The defence that the comments made on the Bs Facebook wall were republication did not apply because the posting of the comments was no different to the putting up of a notice on a conventional notice board, accessible to third parties. The fact the “notice board” was electronic rather than physical made no difference.

Lady Justice Sharp reasoned that the legal distinction between publication and republication properly reflected the difference between the two situations; an original publisher was directly responsible for his or her own actions, whereas in a republication case certain thresholds had to be established before an original publisher could be held responsible for the republication of material by third parties. In this case, the appellant had been aware Facebook was a semi-public platform and she had purposely posted B’s wall without considering who might see her comments. Therefore, it was fair and just that she should be held responsible for the defamatory content of her statements.

The Court of Appeal’s decision clarifies that the law of republication is unlikely to apply to comments made on a person’s Facebook wall. Members of the public need to, therefore, be conscious that they will be held responsible for any defamatory content they publish on their newsfeed or someone else’s.

Defamation law in relation to social media is still in its infancy. And so is people’s understanding that posting or re-posting a false statement which causes “serious harm” to a person’s reputation could leave them liable under the Defamation Act 2013.

When it comes to making statements online, the best rule is “if in doubt, leave it out”.

Saracens Solicitors is a multi-service law firm based in London’s West End. We have dedicated and highly experienced civil litigation solicitors who can advise you on all defamation matters. For more information, please call our office on 020 3588 3500.

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[1] [2018] EWCA Civ 170

[2] https://www.statista.com/statistics/264810/number-of-monthly-active-facebook-users-worldwide/

[3] https://academic.oup.com/aje/article/185/3/203/2915143

[4] [2008] EWCA Civ 130