By Nicholas Ellor, senior underwriter at Legal Futures Associate Temple Legal Protection
Shakespeare would probably have enjoyed the verbal jousting on social media and Hamlet’s ponderings about human existence in general could also have worked online. But with Twitter in the news again as Elon Musk considers taking over the company and into private ownership, we ask whether this is all ‘much ado about nothing’ or if libel law needs to restrain the worst excesses of online debate.
It’s a platform some say is the refuge of (to coin a phrase by a former US President) “nutjobs” and the delusional. As a platform to express opinions and promote debate it has proved highly popular. Views can be controversial and language employed to express them offensive and abusive. Just like email, one press of a small button and the missive is dispatched, disseminated to devoted “followers” and re-tweeted at will.
However, it’s not a free-for-all. Twitter does have its own rules regarding content and what can or cannot be posted. External regulation of such content is not in place but politicians from both sides of the Atlantic are pushing for it to be. Regardless of whether such regulation is enacted, existing libel laws apply and act as an actual if not subliminal check on what “Twitterers” and “Tweeters” post.
Thank heavens insults do not generally amount to slander and fact must be distinguished from opinion. A person can call me a tw*t or even a twit but such a description, although abusive, is not verifiable as a fact (says he hopefully); it’s an opinion probably said or posted in the heat of the moment. Opinions can of course be highly offensive, especially if they’re of a personal nature.
To be defamatory, a statement must be untrue and damage the reputation to whom it is addressed or refers. Mr. Musk is of course no stranger to Twitter and the offence it can cause.
- In a widely publicised US libel action in 2018, he was sued by a British man for defamation whom he (Mr. Musk) called “pedo guy” and whom others regarded as a hero in helping rescue a young Thai football team trapped in flooded caves.
- The US jury however had a different take on it and, to the surprise of many in the UK, found the remark “Pedo guy” wasn’t defamatory but just an insult said in anger and not meant nor intended to be a statement of fact. The remark of course nevertheless was highly unpleasant and offensive; to Mr. Musk’s credit, he did apologise.
Opinions can be offensive but they can also form the basis of the statutory defence in libel proceedings of “honest opinion”.
What constitutes a statement of opinion from being a statement of fact and vice versa was the subject of detailed legal analysis in a case Temple insured and was the subject of an appeal heard in the Court of Appeal (Millett v Corbyn  EWCA Civ 567). This was an appeal against a trial of preliminary issues where it was held that the words complained of were statements of fact and not opinion.
The case related to the Andrew Marr interview of Jeremy Corbyn and what Mr. Corbyn had said about “Zionists… who don’t understand English irony” and their behavior at meetings he had attended to discuss the Palestinian situation. He had accused them of being both very abusive and disruptive. Mr. Corbyn said these were statements of opinion and not fact.
In the appeal Warby LJ succinctly summarized the dichotomy faced:
“16. …the defence of honest opinion as a bulwark of free speech. It must not be whittled away by artificially treating comments as if they were statements of fact. On the other hand, if a person could use this defence as a means of escaping liability for a false defamatory allegation of fact, the law would fail to give due protection to reputation.”
The claimant was successful in defending Mr. Corbyn’s appeal and the trial of the main action is to be heard in October this year.
Another case that Temple insured (Rachel Riley –v- Laura Murray  EWHC 3437 (QB)), demonstrates the trouble people can get themselves into when “twittering.” It emanated from a tweet Rachel Riley posted relating to Mr. Corbyn being pelted with eggs whilst visiting Finsbury Mosque Park in 2019.
To complicate matters, Ms Riley actually posted a screenshot of a tweet issued by a Guardian columnist and well-known Jeremy Corbyn supporter relating to a similar attack on the former British National Party leader Nick Griffin.
Needless to say, a Twitter spat ensued with Ms Murray, a former aide to Jeremy Corby, posting tweets which Ms Riley found defamatory and sued on. Nicklin J found in favour of Ms Riley and awarded her £10,000 in damages.
I should say that permission to appeal this decision was granted this month on grounds of truth, honest opinion and publication on a matter of public interest and we await with interest the outcome of the appeal.
Temple has insured publication and privacy proceedings for many years and continues to insure large numbers of claimants seeking damages relating to unlawful phone-hacking. Likewise, we have insured and continue to insure a large number of claims in defamation, often the subject of reporting in the legal and national press.
If you’d like to discuss a case or more information on our ATE insurance and disbursement funding products for media and communications litigation, please email firstname.lastname@example.org or call him on 01483 514428.