For years we've pointed out that UK libel law, in particular, was horrible and easily abused to chill speech. Things appear to have gotten somewhat better -- as some really bad cases at least made people realize that some of the more extreme issues needed to be fixed, but on the whole, UK libel law is still incredibly broad, and can and does stifle speech (and, yes, I know, the UK doesn't have the same free speech protections as the US does -- but it should). This latest case is just a good example of why the UK's standards for libel are so problematic.
The story involves two columnist/writers in the UK who got into a bit of a Twitter spat. Part of the problem, here, is that a lot of people have very strong emotional opinions about at least one of the parties in the lawsuit. Katie Hopkins has made a name for herself saying outrageous things and has been referred to, multiple times, as a professional troll. There are lots of people who dislike her, and certainly are quite happy to see that she's come out the big loser in this libel dispute. But before you celebrate, the details here are important, and quite worrisome, if you support freedom of expression.
I recommend reading the full ruling by the UK High Court, which makes it pretty clear that this was just a fairly quick and silly Twitter spat -- not unlike one that many, many people (perhaps, including, some of you reading this right now...) get involved in each day. The background is that another columnist, Laurie Penny, had tweeted something more or less saying she was okay with some graffiti on a WWII memorial in London. Hopkins got angry at Penny's tweets and there were some angry tweets about Penny. That got some press attention for reasons I don't fully understand. A week or so later, Hopkins starts tweeting angrily at a different columnist, Jack Monroe, sort of referencing back to Penny's tweets about the memorial vandalism. And, as the court ruling notes, the following happened:
- At 7.20pm Ms Hopkins posted the first tweet of which Ms Monroe complains (“The First Tweet”). It was in these words:
“@MsJackMonroe scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom. Grandma got any more medals?”
- At 7.33pm Ms Monroe tweeted in these terms: “I have NEVER ‘scrawled on a memorial’. Brother in the RAF. Dad was a Para in the Falklands. You’re a piece of shit.” (With a screenshot to the First Tweet)
Ms Monroe tweeted again at 7.36pm: “I’m asking you nicely to please delete this lie Katie, and if I have to ask again it will be through my lawyer.” (With a link to the First Tweet)
At 8.14pm Ms Monroe tweeted again, this time using Ms Hopkins’ Twitter handle: “Dear @KTHopkins, public apology +£5k to migrant rescue & I won’t sue. It’ll be cheaper for you and v. satisfying for me.”
At some point between the posting of that tweet and 9.47pm, the First Tweet was deleted by Ms Hopkins.
At 9.47pm Ms Hopkins posted the second tweet of which Ms Monroe complains (“the Second Tweet”). It was in these terms:
“Can someone explain to me - in 10 words or less - the difference between irritant @PennyRed and social anthrax @Jack Monroe.”
At some point that evening, I infer about this time, Ms Hopkins blocked Ms Monroe. That prevented Ms Monroe from communicating with her via Twitter.
Later on 18 May 2015 the Claimant published the following on Twitter: “BA_DA_BOOM! It lies! It smears! It’s wrong! It panics! It blocks! It’s @KTHopkins everyone!” (With six pictures of a chicken)
At 22:30 on 18 May 2015 the Claimant published the following on Twitter: “Gin
o clock. Cheers. God isn’t it good sweet justice when a poisonous bully gets shown up for what it is and runs runs runs away.”
That's it. Literally that's it. That was the entire Twitter spat, which again -- for reasons I cannot comprehend -- got a bunch of press attention. Based on that, Monroe sued Hopkins for defamation. And won. Again, let's be clear about the entire extent of the fight here. Hopkins tweeted something that was, admittedly stupid and provoking, at Monroe. But it made no statement of fact about Monroe (as would be required in the US). That tweet was deleted within 2 and a half hours (and possibly earlier). Then there was a second tweet, in which Hopkins seemed to admit that she got confused between Monroe and Penny, but again made no statement of fact, just called Monroe "social anthrax."
I've been in Twitter fights significantly worse than that. In fact, there's a decent chance I'll be in a Twitter fight significantly more crazy than that by the end of this week. These kinds of silly spats happen all the time. It's just kind of the nature of Twitter. In the US, such a lawsuit would go nowhere quite fast on basically every possible grounds. There's no false statement of fact that would in any way harm Monroe's reputation. There's no actual malice as required for defamation of a public figure (which Monroe certainly is). And the entire thing is a Twitter spat, which in context is little more than a few insults flung back and forth at one another. Honestly going through the entire exchange, the only thing even remotely sorta, barely (but not really) approaching a "statement of fact" would be Monroe calling Hopkins "a piece of shit." But that's clearly rhetorical hyperbole, as was most of the discussion.
This kind of dispute would be laughed out of a US court. But... over in the UK, Monroe wins, even as the court admits the whole thing is kind of silly. The court even admits that no "reasonable reader" would think that Hopkins was actually saying that Monroe had done the vandalism. But the court still finds this to be defamation -- which boggles the mind:
Ms Monroe complains of the natural and ordinary meaning. That is not the same as a literal meaning. The literal meaning, that Ms Monroe had herself scrawled on and vandalised a memorial, would be rejected by the reasonable reader, having regard to the context. The reader would see the tweet as having an element of metaphor. But it is, to my mind, an inescapable conclusion that the ordinary reasonable reader of the First Tweet would understand it to mean that Ms Monroe “condoned and approved of scrawling on war memorials, vandalising monuments commemorating those who fought for her freedom.” That is a meaning that emerges clearly enough, making full allowance for everything that seems to me relevant by way of context: the characteristics of Ms Hopkins and Ms Monroe, the nature of Twitter, and the immediately surrounding contextual material on Twitter. The reference to Grandma would not be understood, but that would not affect the reader’s conclusion.
But how is that possibly "defamatory"? Well, again, in the UK, what counts as defamatory is quite different than what counts as defamatory in the US. Apparently, in the UK, saying mean things about someone is defamatory. Indeed, the court even admits that this is about whether or not your feelings get hurt:
All of this, however, is about injury to feelings, and the issue I have to address at this stage is whether serious harm to reputation has been proved.
Injury to feelings? That's where freedom of speech goes to die. Anyone's feelings can get hurt over just about anything. People insult one another all the time, sometimes publicly. I'm constantly reading about politicians (including in the UK) insulting one another. That shouldn't be defamation. But, apparently, it is.
I have reached the clear conclusion that the Serious Harm requirement is satisfied, on the straightforward basis that the tweets complained of have a tendency to cause harm to this claimant’s reputation in the eyes of third parties, of a kind that would be serious for her.
And, yes, I understand that part of the reason why UK defamation law (and defamation law in many other countries) works this way. Historically, it was to allow those who had no other recourse to hit back at the more powerful saying things that would damage their reputation. So, for example, if a newspaper printed something that seriously harmed someone's reputation, that individual would not have any recourse. But that's not the case today. And that's clearly evidenced by the fact that this happened on Twitter where both sides got to clearly express their side and their anger. So you don't need a court to come in and claim that there was "serious harm" to Monroe's reputation, because that makes no sense. Those who respect Monroe would clearly see her tweets responding angrily to Hopkins and would pretty quickly recognize that Hopkins, in true Hopkins fashion, was saying nutty stuff again.
The court tries to do away with this point, by arguing that the two did not have many overlapping followers, so the followers of Hopkins wouldn't necessarily see Monroe's responses:
Ms Monroe’s own responses on Twitter. These are said to have mitigated harm by making her position clear. There are several difficulties with this contention. One is that denials are not at all the same thing as corrections, retractions or apologies. The response of the accused is inherently unlikely to undo the damage caused initially. A second, and probably more significant point, is that Ms Monroe had no access to the followers of Ms Hopkins. The fact that the overlap in their followers was so small tends to undermine this submission.
But if that's the case, what's the "concern" here? This also seems to ignore that the original Hopkins tweet appears to have been directed at Monroe, meaning only those who followed both would see it. Separately, given the widespread news coverage of this, people who actually cared would likely have seen the whole debate play out. Furthermore, what difference does it make that "denials are not at all the same thing as corrections, retractions or apologies." So what? In the marketplace of ideas, people present their positions and everyone gets to decide who they believe. And here it seems pretty clear to anyone with half a brain that Hopkins tweeted out some crazy angry insults without realizing what she was doing. That should harm her own reputation (even if her reputation is saying silly nonsense stuff already) without needing a court to say she defamed Monroe.
Eventually, the court comes up with a totally subjective "scale" of injury to feelings to determine how much Hopkins needs to pay:
In this case, the allegations were serious but certainly not towards the top end of the scale. The extent of publication was significant but not massive in its scale. The harm to reputation, though serious, will not have been grave. The need for vindication is not a weighty factor, as there has been no attempt to prove the truth of what was alleged. This judgment will make the position clear to those who were unaware of it already. Ms Monroe is a public figure, in the sense that she chooses to engage in public life and to engage in political discourse in public forums. The injury to feelings 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.
Taking account of all these matters, my award is £24,000. That is divided into £16,000 for the First Tweet and £8,000 for the Second Tweet. The reason for this division is that the majority of the harm to reputation will have been caused by the First Tweet, and it was that tweet that caused the greatest injury to feelings at the time. These awards are higher than they would have been, if damages had been assessed at or shortly after the time of publication, because they take account of the fact that harm to reputation has continued, and injury to feelings has been increased by the defendant’s behaviour.
The First Tweet was a mistake. It was not fully retracted but there has been no attempt to prove the truth of what was suggested. Ms Hopkins will realise, and no doubt be advised, that to repeat the same message would be likely to result in a substantial damages award. I do not consider that there is any evidence of a threat or risk of repetition. There is no need for an injunction.
I don't understand this at all. The whole idea that someone's feelings getting hurt is defamation is completely antithetical to any reasonable support of a regime of freedom of expression. Based on the standards in this ruling, a ridiculous number of tweets happening right this very second could be subject to massive monetary awards in the UK, and that's crazy. At worst this will lead to more silly litigation over schoolyard spats that now take place online. Alternatively, it will lead people to self-censor and simply not speak out online for fear of being sued. That's the chilling effects that comes when you have laws that decide freedom of expression is not a priority. No matter your opinion of Hopkins or Monroe (and I'm no fan of Hopkins), this ruling is dangerous for freedom of expression online.