Is it possible that Britain’s populist polemicist Katie Hopkins may be right? Perhaps, just on this one thing: the outcome of the Jack Monroe libel trial. She says the High Court judge who found against her for her inaccurate and rude tweets against Monroe was wrong and she intends to appeal. [Note: in the event no appeal was forthcoming.]
Monroe was awarded £24,000 in damages in the High Court in a row over a tweet implying the food writer and activist approved of defacing a war memorial during an anti-austerity demonstration in Whitehall. Hopkins had simply confused Monroe with left-wing polemicist Laurie Penny. She deleted the tweet but then sent one out suggesting that, nonetheless, Monroe was a pretty awful person (“social anthrax” was the term used).
In the case Mr Justice Warby noted that:
“Libel consists of the publication by the defendant to one or more third parties of a statement about the claimant which has a tendency to defame the claimant, and causes or is likely to cause serious harm to the claimant’s reputation.”
Serious harm to reputation is crucial, particularly since the Defamation Act of 2013, which enshrined the concept in legislation – with the clear intention of curbing defamation actions seen as wasteful of court time and (one suspects) irritating to the Conservative Government’s friends among newspaper owners. It says at Section 1:
“(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”
The intention was to focus on real harm and deter trivial cases. But reading the Monroe judgment, one can’t help thinking that Warby underplayed “serious harm” and somewhat overplayed Monroe’s hurt feelings once Hopkins’s loyal fans got to work on Twitter.
But the revised law (and indeed the old common law of libel) is not specifically intended to protect people from being upset or finding sleep difficult for a few days. It is to protect them from untrue claims that could seriously harm their reputation.
Traditionally the issue has been adjudged on the question: do the words complained of “lower the claimant in the estimation of right-thinking members of society in general” (Sim v Stretch (1936) at 1240) thereby holding the individual up to hatred or contempt. This is an objective test and does not require a claimant to show that her reputation has actually been lowered in the eyes of actual people, or even that it would be so damaged if unchecked. If it obviously could have been damaging, that was enough.
But, if it means anything, the new Defamation Act must surely have modified this basic position. After all Justice Minister Helen Grant told the House of Commons on April 2013 “we amended what was initially a ‘substantial harm’ requirement to one of ‘serious harm’ to raise the bar for bringing defamation claims”. The aim of the Act is to curb claims, not put more emphasis on hurt feelings. The point was made by Judge Moloney QC in Theedom v Nourish Training Ltd  EWHC 3769 (QB):
“It is important to bear in mind that s 1 is essentially a threshold requirement, intended by Parliament to weed out those undeserving libel claims otherwise technically viable, but which do not involve actual serious harm to reputation or likely serious harm to reputation in the future.”
So this emphasises serious harm that has actually occurred or actually could occur in the future. But arguably the tweets against Monroe did not come anywhere near meeting this test. To prove actual serious harm or potential serious harm, it must surely be the case that claimants point to actual people (or actual classes of people) whose loss of faith in them could cause them real harm (by not buying their books or reading their columns any more, for example).
Warby does not seem to be of this view. He holds that “right-thinking members of society generally would regard this [daubing memorials] as obnoxious behaviour” (even if left-thinking people might be less bothered), and so clings to the old test. He notes:
“It is not safe to infer that a claimant’s reputation has not been harmed by a specific defamatory allegation just because a person who makes rude remarks about the claimant after publication also made rude remarks about her before.” (para 71)
In other words the people who were unpleasant to Monroe before the tweets might take the opportunity of Hopkins’s allegation to be unpleasant again. Warby suggests that should not be taken as evidence of no harm. People might have a poor view of someone which becomes poorer when allegations like Hopkins’s come along. So:
“As Mr [William] Bennett [Monroe’s counsel] puts it, if someone is hated for their sexuality or their left-wing views, that does not mean they cannot be libelled by being accused of condoning the vandalisation of a war memorial. It can add to the list of reasons to revile her.”
Warby goes through a series of these double negative points (see “Monroe’s fans” below) and concludes: “I am not persuaded that the absence of evidence of this kind is evidence of a lack of harm.” Absence of evidence is not evidence of absence of evidence!
He thus fails to see a problem in the fact that Monroe did not produce any positive evidence of actual serious reputational harm or potential serious reputational harm in the actual circumstances. He seems to hold strongly to the view that hurt feelings are a major element of the tort of libel despite the legislative change (clarification?) in the 2013 Act. He quotes Bingham in a 1979 case regarding damages:
“That sum must  compensate him for the damage to his reputation;  vindicate his good name; and  take account of the distress, hurt and humiliation which the defamatory publication has caused.” John v MGN Ltd  QB 586 (emphasis added).
But that is an old traditional case before the new line of cases that are the background to the legislative change. And even Warby says: “Head  is parasitic [ie dependent] on proof of harm to reputation, and needs to bear some relationship to that harm”. Nevertheless, he adduces no separate serious harm and asserts that:
“The injury to feelings [in Monroe’s case] was real and substantial, and has continued. It has been significantly exacerbated by the way the defence has been conducted. Nonetheless, compensation for hurt feelings should be in scale with the award that seeks to compensate for harm to reputation.”
He adds that “injury to feelings has been increased by the defendant’s behaviour” – removing but not apologising for the original tweet, failing to send Monroe £5,000 for Migrant Rescue at Monroe’s suggestion to settle the matter, and also, presumably, the very act of defending the case in court – and “the way the defence has been conducted” – which seems to come down to Hopkins’s lawyers not putting her in the witness box.
Warby says: “The harm to reputation, though serious, will not have been grave.” But what is the serious harm that followed (or could, in the circumstances, have followed) from Hopkins’s tweets? People who don’t buy Monroe’s books out of prejudice aren’t going to buy any fewer after Hopkins’s claim. Fans of Monroe were given no reason to change their minds (see below). Monroe might have had to cope with a spike in Twitter bile, which is distressing, but does it qualify as actual, quantifiable serious harm to her reputation (which is what libel law is there to protect)? And can Hopkins’s decision to defend herself in what is, after all, a nascent area of law (Twitter libel, post 2013 Act libel) and her lawyers’ handling of the defence be added into the mix to create “serious harm” if there wasn’t any harm to reputation in the first place?
It is important to clear this matter up on appeal because otherwise it creates a fairly serious assault on free speech which the legislation was intended to avoid. The 2013 Act enshrined the view emerging in the courts that actual serious harm (or a real potential for serious harm in the future) had to be proved in libel, contrary to the traditional legal view (whereby, for example, if a friend received a defamatory note about you, it was deemed libellous even if the friend did not believe it and knew it to be untrue). Warby, however, cleaves to the old view:
“Where an allegation has a seriously defamatory tendency and is widely published a claimant may choose to rely on those facts alone, perhaps in conjunction with evidence as to the identity of the publishees, as the basis for an inference that serious harm was actually caused … In some cases it may be enough. It is certainly not necessary in every case to engage in a detailed forensic examination of the precise factual picture, in order to determine whether the Serious Harm requirement is satisfied.”
The problem with Twitter is that there are many, many people standing in the wings waiting to hurl insults at people like Jack Monroe. If these insults are to be regarded as “serious harm” in themselves because they are distressing (rather than causing reputational harm or psychiatric harm as defined in Tort: a recognised psychiatric illness), it looks like quite a big loophole in the law. Whether the libel appeared in print or on Twitter itself, a claimant would simply give a nod to the view of a non-existent “right-thinking person” then point to the distressing results appearing on his or her Twitter timeline to win an action.
In this case Warby did not even have the evidence of the Tweets from the trolls to establish whether they might potentially have caused serious harm since they had been “extensively deleted”. He had Monroe’s testimony that they were bad and that even the prospect of their arrival was distressing, but little more.
Hopkins’s second tweet (the one that called Monroe “social anthrax”) has absolutely no inherent defamatory quality at all, even though Warby thought it merited £8,000 of the £24,000 damages. It is what has always been known in the world of defamation as “mere vulgar abuse”, a notion derived from slander but perhaps apt for the quick-fire conversational world of Twitter (see Mr Justice Eady on the ADFVN case below), making it unlikely to be truly actionable. Warby considers it actionable in libel because it had a link with the previous (by then deleted) tweet and hence (somewhat tenuously) bore the same meaning.
Such a low bar to the definition of “serious harm” in the world of Twitter cannot have been the intention of the 2013 Act since it would make users of Twitter more prone to being libelled than those who don’t have an account and hence can’t be got at by the trolls. Warby’s judgment needs serious rethinking.
Note: Since the Monroe case the UK Supreme Court has ruled (12 June 2019) on Lachaux (Respondent) v Independent Print Ltd and another (Appellants) and underlined that serious is a crucial part of the new law on libel. On “serious harm” Lord Sumption said: “Although the Act must be construed as a whole, the issue must turn primarily on the language of section 1. This shows, very clearly to my mind, that it not only raises the threshold of seriousness above that envisaged in Jameel (Yousef) v Dow Jones  QB 946 and Thornton v Telegraph  1 WLR 1985, but requires its application to be determined by reference to the actual facts about its impact and not just to the meaning of the words.”
He says further: “Secondly, section 1 necessarily means that a statement which would previously have been regarded as defamatory, because of its inherent tendency to cause some harm to reputation, is not to be so regarded unless it “has caused or is likely to cause” harm which is “serious” … In this context, the phrase [likely to cause] naturally refers to probable future harm. Ms Page QC, who argued Mr Lachaux’s case with conspicuous skill and learning, challenged this. She submitted that “likely to cause” was a synonym for the inherent tendency which gives rise to the presumption of damage at common law. It meant, she said, harm which was liable to be caused given the tendency of the words … [This suggestion seemed] to me to be rather artificial in a context which indicates that both past and future harm are being treated on the same footing, as functional equivalents. If past harm may be established as a fact, the legislator must have assumed that “likely” harm could be also.”  UKSC 27 at 14
And crucially, on financial harm, he says: “A given statement said to be defamatory may cause greater or lesser financial loss to the claimant, depending on his or her particular circumstances and the reaction of those to whom it is published. Whether that financial loss has occurred and whether it is “serious” are questions which cannot be answered by reference only to the inherent tendency of the words. The draftsman must have intended that the question what harm it was “likely to cause” should be decided on the same basis.”  UKSC 27 at 15
He concludes: “Finally, if serious harm can be demonstrated only by reference to the inherent tendency of the words, it is difficult to see that any substantial change to the law of defamation has been achieved by what was evidently intended as a significant amendment. The main reason why harm which was less than “serious” had given rise to liability before the Act was that damage to reputation was presumed from the words alone and might therefore be very different from any damage which could be established in fact. If, as Ms Page submits, the presumption still works in that way, then this anomaly has been carried through into the Act. Suppose that the words amount to a grave allegation against the claimant, but they are published to a small number of people, or to people none of whom believe it, or possibly to people among whom the claimant had no reputation to be harmed. The law’s traditional answer is that these matters may mitigate damages but do not affect the defamatory character of the words. Yet it is plain that section 1 was intended to make them part of the test of the defamatory character of the statement.”  UKSC 27 at 16. Emphasis added
This was just the point that came out in Monroe – which now looks clearly to have been wrongly decided. Yet Warby refused leave to appeal in the Monroe case on jurisdictional grounds but also added this on Hopkins’s grounds for appeal:
“This was not a case which raised any great issues of legal principle. It turned essentially on its own facts. The points of law that are raised are in my view untenable. The Court of Appeal will not lightly interfere with findings of fact.”
New payout MailOnline has now (November 2017) made a substantial payout as a result of a casual bit of inaccurate polemic from Katie Hopkins, this time against a teacher she accused of taking her class to a Donald Trump protest in Westminster (MailOnline payout: Guardian). The Mail apology is here. In further unhappy news for Hopkins, MailOnline has now ended its contractual relations with her.
• This on the Twitter joke trial may also be of interest: Twitter joke and Lord Judge.
• Inforrm’s Blog has a report on the Monroe v Hopkins case and summings up here.
• Background from Practical Law
• Karl McDonald (writing before the result of the case) said on iNews “Monroe v Hopkins is one of just a few high-profile examples of Twitter libel, but if it works, the loosely thrown accusations and insults of social media might suddenly become evidence, instead of simply background noise.”
• Tom Wright writes here on the rejected application to appeal
• An interesting House of Lords debate on serious harm is on Hansard here, making the point that the intention was to raise the bar for libel actions. During it Lord McNally, for the Government, said this:
“Establishing in statute a substantial harm test for the first time would give this requirement a new prominence and would help to discourage trivial and unfounded claims being brought. In its report, the Joint Committee on the draft Bill took the view that a stricter test was appropriate and that, ‘a threshold test that focuses on the seriousness of the allegation would raise the bar in a meaningful way and give greater confidence to publishers that statements which do not cause significant harm, including jokes, parody, and irreverent criticism, do not put them at risk of losing a libel claim’. It recommended a test of serious and substantial harm. [In the event “serious harm” was held to encompass “serious and substantial”.]
• Brendan O’Neill on Spiked sees the case as a “sad day for free speech”. He cites with approval the US Supreme Court ruling New York Times v Sullivan (1964: page 376 U. S. 272) as recognising the importance of free speech for wrong statements: “Erroneous statement is inevitable in free debate, and … it must be protected if the freedoms of expression are to have the ‘breathing space’ that they need to survive.” (The notion of the First Amendment rights needing “breathing space” is derived from NAACP v Button (1963: page 371 U. S. 433)
Note on Monroe’s fans
Given in the old days a statement can be defamatory even if it is not believed, what of those who like and respect Monroe? Hopkins’s lawyers pointed out that all the media coverage of the case on the day of the tweets was in the context of Hopkins having got it wrong with a focus on the Twitter spat between Hopkins and Monroe that ensued. So, their contention was, the libel was not more widely damaging to Monroe since the media presented it as wholly false from the start. In effect, one can say Monroe’s fans will not have had their view changed by the articles since the articles made clear the allegation was untrue.
Warby dismisses this point on the grounds that the media organisations were largely “liberal” or “of the left”. The readers of those pieces would have been favourable to Monroe from the start but “the coverage did not amount to an authoritative or comprehensive refutation of the original allegation. As Mr Bennett [for Monroe] points out, there was a potentially harmful impact of this publication, as it brought the whole matter to the attention of a fresh audience”.
But what was the harmful impact from Monroe’s sympathisers reading those favourable accounts? None at all, presumably, and a reading of the judgment does not seem to adduce any. In the context, no actual serious harm could have occurred – and although it might have occurred in some other context, it would be absurd to create an alternative reality in which, say, the coverage might have been less sympathetic or have failed to clearly state the allegations were not true.
Lord Atkins’ test
“The question, then, is whether the words in their ordinary signification are capable of being defamatory … Judges and text book writers alike have found difficulty in defining with precision the word ‘defamatory’. The conventional phrase exposing the plaintiff to hatred, ridicule, or contempt is probably too narrow. The question is complicated by having to consider the person or class of persons, whose reaction to the publication is the test of the wrongful character of the words used. I do not intend to ask your Lordships to lay down a formal definition, but after collating the opinions of many authorities I propose in the present case the test: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally? … It is well settled that the judge must decide whether the words are capable of a defamatory meaning. That is a question of law: is there evidence of a tort? If they are capable, then the jury is to decide whether they are defamatory.” Sim v Stretch  2 All ER 1237
The emerging new test (Mr Justice Tugendhat)
“There is a further point to be noted if my conclusion in paras 90 and 92 is correct [on a seriousness threshold]. If this is so, then it explains why in libel the law presumes that damage has been suffered by a claimant. If the likelihood of adverse consequences for a claimant is part of the definition of what is defamatory, then the presumption of damage is the logical corollary of what is already included in the definition. And conversely, the fact that in law damage is presumed is itself an argument why an imputation should not be held to be defamatory unless it has a tendency to have adverse effects upon the claimant. It is difficult to justify why there should be a presumption of damage if words can be defamatory while having no likely adverse consequence for the claimant. The Court of Appeal in Jameel v Dow Jones [Jameel v The Wall Street Journal Europe Sprl  EWCA Civ 1694] declined to find that the presumption of damage was itself in conflict with Art 10 [European Convention on Human Rights on free expression] (see para ), but recognised that if in fact there was no or minimal actual damage an action for defamation could constitute an interference with freedom of expression which was not necessary for the protection of the claimant’s reputation.” Thornton v Telegraph Media  EWHC 1414 (QB) at 93 (emphasis added).
Mere vulgar abuse: Mr Justice Eady
“It is this analogy with slander which led me in my ruling of 12 May to refer to ‘mere vulgar abuse’, which used to be discussed quite often in the heyday of slander actions. It is not so much a defence that is unique to slander as an aspect of interpreting the meaning of words. From the context of casual conversations, one can often tell that a remark is not to be taken literally or seriously and is rather to be construed merely as abuse. That is less common in the case of more permanent written communication, although it is by no means unknown. But in the case of a bulletin board thread it is often obvious to casual observers that people are just saying the first thing that comes into their heads and reacting in the heat of the moment. The remarks are often not intended, or to be taken, as serious.” Nigel Smith v ADVFN Plc and others  EWHC 1797 (QB) at 17. [One might say the same of Twitter]
Explanatory notes to Section 1 of the 2013 Act:
10. Subsection (1) of this section provides that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. The provision extends to situations where publication is likely to cause serious harm in order to cover situations where the harm has not yet occurred at the time the action for defamation is commenced. Subsection (2) indicates that for the purposes of the section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.
11.The section builds on the consideration given by the courts in a series of cases to the question of what is sufficient to establish that a statement is defamatory. A recent example is Thornton v Telegraph Media Group Ltd  EWHC 1414. in which a decision of the House of Lords in Sim v Stretch  2 All ER 1237 was identified as authority for the existence of a “threshold of seriousness” in what is defamatory. There is also currently potential for trivial cases to be struck out on the basis that they are an abuse of process because so little is at stake. In Jameel v Dow Jones & Co  EWCA Civ 75. it was established that there needs to be a real and substantial tort. The section raises the bar for bringing a claim so that only cases involving serious harm to the claimant’s reputation can be brought.
12.Subsection (2) reflects the fact that bodies trading for profit are already prevented from claiming damages for certain types of harm such as injury to feelings, and are in practice likely to have to show actual or likely financial loss. The requirement that this be serious is consistent with the new serious harm test in subsection (1).