Mon | May 20, 2019

Laws of Eve | Defamation via Facebook post

Published:Monday | April 22, 2019 | 12:21 AM

It is safe to say that the prolific use of social media in the 21st century has changed all of our lives; and the recent decision of the UK Supreme Court in the case of Stocker v Stocker 2019] UKSC 17 - a defamation claim involving former spouses - confirms the impact of those changes on how the court determines the meanings of words. The following extracts from the judgment make the point:

“The fact that this was a Facebook post is critical. The advent of the 21st century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read.”

“. . . It is wrong to engage in elaborate analysis of a tweet; it is likewise unwise to parse a Facebook posting for its theoretically or logically deducible meaning. The imperative is to ascertain how a typical (ie an ordinary reasonable) reader would interpret the message. That search should reflect the circumstance that this is a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre-eminently one in which the reader reads and passes on.”

The relevant background to this claim is that, in a Facebook post to her former husband’s new love interest, Mrs Stocker wrote, “he tried to strangle me”. Mr. Stocker claimed that the words could be said to mean that he tried to kill Mrs Stocker. She denied that the words bore that meaning and that, in the context of domestic violence, the words would be understood to mean that her husband had violently gripped her neck, inhibiting her breathing so as to put her in fear of being killed; and not that he had an intention to kill her.

Mr Stocker succeeded at the trial, particularly because the judge directed the parties to refer to the Oxford English Dictionary’s definition of the verb, “strangle”. Essentially, the judge held that ‘strangle’ means either killing someone by choking them to death or grasping them by the throat and, since Mrs Stocker was not dead, she must have meant that her husband tried to kill her.

The Court of Appeal upheld the first instance ruling. However, on appeal to the Supreme Court, it was held that the judge had fallen into error because he did not consider how the ordinary reader of the Facebook post would have understood it. The following considerations should have been borne in mind:

n Readers of Facebook posts do not subject them to close analysis, so a dictionary definition of the word “strangle” would not be the proper basis for determining the meaning of a Facebook post.

n A Facebook reader does not splice the post into separate clauses, much less isolate individual words and contemplate their possible significance.

n Knowing that the author was alive, the Facebook reader would have interpreted the post as meaning that Mr Stocker had grasped his wife by the throat and applied force to her, neck rather than that he had tried deliberately to kill her.

In defamatory claims, only one meaning can be attributed to the alleged defamatory words and, once that meaning is determined by the trial judge, it is a finding of fact which is not lightly disturbed by an appellate Court. Where, however, an appellate court considers that the meaning that the judge has given to the statement was outside the range of reasonably available alternatives, or was arrived at through an error of law, the appellate court may either remit the matter or determine the meaning afresh.

Based on the meaning the Supreme Court held the words to have and the finding that Mrs Stocker’s post was true, Mrs Stocker’s appeal succeeded.

- Sherry Ann McGregor is a partner, mediator and arbitrator at Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.