Food blogger and political activist Jack Monroe has won a defamation claim against Katie Hopkins in respect of two tweets published on Twitter. Ms Monroe was awarded £24,000 in damages. The case is particularly significant given the Twitter context generally, but also that this was the first time that the 'serious harm' test under the Defamation Act 2013 has been applied to tweets.
The case concerned two tweets posted by Mail Online columnist Katie Hopkins in May 2015 referring to Ms Monroe. Ms Hopkins’ tweets were part of a wider reaction across social media to the vandalising of a war memorial during an anti-austerity protest. They were prompted by a post from New Statesman columnist Laurie Penny who had tweeted “I don’t have a problem with this. The bravery of past generations does not oblige us to be cowed today”. Ms Hopkins' first tweet in response mistook Ms Monroe for Ms Penny:
“@MsJackMonroe scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom. Grandma got any more medals?” ("The First Tweet").
Ms Monroe tweeted in response “I have NEVER ‘scrawled on a memorial’. Brother in the RAF. Dad was a Para in the Falklands. You're a piece of shit.” She subsequently asked Ms Hopkins for a public apology and a £5,000 charitable donation in settlement. Ms Hopkins deleted the original tweet but failed to apologise or retract the statement. Later that same day, Ms Hopkins tweeted again:
“Can someone explain to me – in 10 words or less – the difference between @PennyRed [Laurie Penny] and social anthrax @MsJackMonroe?” ("The Second Tweet").
Ms Monroe claimed that (i) the First Tweet suggested that she had either vandalised a war memorial, which was a criminal act, or condoned or approved that vandalisation; and (ii) the Second Tweet bore a defamatory innuendo meaning that she approved or condoned that vandalisation. She argued that both Tweets had caused her serious harm pursuant to section 1 of the Defamation Act 2013.
Mr Justice Warby was required to determine: (i) what meanings were borne by the Tweets; (ii) whether those meanings had defamatory tendency; and (iii) whether it was proved that the serious harm requirement was met.
The meaning of a statement argued to be defamatory is that which is conveyed to a hypothetical ordinary reader. In the context of Twitter, the hypothetical reader should be taken to be a reasonable representative of users of Twitter who follow the defendant, but taking into account that readership of a tweet may go beyond these followers. Whether that meaning is defamatory depends on whether it would tend to have a substantially adverse effect on the way that right-thinking members of society would treat the claimant.
Warby J held that the First Tweet bore the natural and ordinary meaning that Ms Monroe "condoned and approved of scrawling on war memorials, vandalising monuments commemorating those who fought for her freedom". The claim in respect of the Second Tweet was based on innuendo – that the readers of the Second Tweet would have read it in the context of the First Tweet which had been published very shortly beforehand. Therefore, the Second Tweet would have been understood to have meant that Ms Monroe "condoned and approved of the fact that in the course of an anti-government protest there had been vandalisation by obscene graffiti of the women's war memorial in Whitehall, a monument to those who fought for her freedom." The judge had no difficulty in finding that the meanings were defamatory.
As to the question of serious harm, the judge accepted Ms Monroe's evidence that the Tweets had caused her significant distress. She had received a certain amount of abuse from other Twitter users. However, this only went towards injury to feelings which on its own is not sufficient. Serious harm to reputation had to be established. The judge reached a clear conclusion that the serious harm requirement was satisfied on the straightforward basis that the Tweets had a tendency to cause harm to Ms Monroe's reputation in the eyes of third parties, of a kind that would be serious for her.
Ms Monroe was awarded £24,000 on the basis that the harm to her reputation was serious, albeit not "very serious" or "grave" so as to justify more substantial damages.
This was not the first Twitter defamation case, but the particular context which involved a well-known controversy-baiting public figure and the first application of the serious harm test to tweets make it significant.
When arguing that Ms Monroe had not suffered serious harm, Ms Hopkins contended that Twitter is the "Wild West" where vulgar and crude statements are par for the course. Accordingly, due allowance should be made for a forum which has less credibility than 'serious' media publications. This argument was roundly rejected by the court given that Ms Hopkins is a well-known figure. Each case is of course dependent on its own facts, but it may now be more difficult to argue that attention-grabbing provocative tweets are just 'mere abuse', 'banter' or statements that aren't taken seriously because they are made on Twitter. Tweets can be held to the same standard as a 'reputable' or 'serious' publication and, crucially, the judge had little difficulty in this case in finding that the serious harm test was satisfied. Controversy-baiting Twitter celebrities may need to be more cautious with what they tweet in the wake of this judgment.
The judgment also made a number of other interesting determinations and observations which will be instructive for future Twitter defamation cases:
Even if a tweet is deleted a sound assessment can be made of the extent of publication (which is important in determining serious harm) through a combination of Twitter analytics, the number of the defendant's followers and number of visits to the defendant's 'home page' on Twitter.
If a tweet is deleted, the element of transience can be considered when assessing serious harm. However, when assessing this, what matters is not the period of time for which a person is exposed to the message but the impact that the message has.
The absence of evidence that a tweet was believed is not evidence of a lack of harm.
Evidence of serious harm in the form of abuse from other Twitter users can be helpful to a claimant's case, but such abusive tweets must be shown to have specifically resulted from the defendant's defamatory tweet.
Ms Hopkins' argument against the occurrence of serious harm on the basis that the Tweets were only made to people whose opinions about Ms Monroe couldn't be shifted was rejected. Ms Hopkins had argued that because of the nature of Twitter, the people who engaged with the Tweets were either her followers or Ms Monroe's followers and therefore either strongly supported Ms Monroe or were already opposed to her. The judge held that a person could have a low opinion of another, and yet the other's reputation can still be harmed by fresh defamatory allegations.
Ms Monroe's own responses to the Tweets on Twitter did not mitigate harm. Denials are not the same as corrections, retractions or apologies. More importantly, Ms Monroe had no access to the followers of Ms Hopkins.
An appendix to the judgment entitled 'How Twitter Works' contains a detailed overview of the mechanics of Twitter and may be particularly instructive for future Twitter defamation cases.