Serious harm in the Twitter 'Wild West'
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Defendants are better off settling than arguing over lack of serious harm, says Andrew Pavlovic
In Monroe v Hopkins [2017] EWHC 433 (QB), Mr Justice Warby awarded £24,000 in damages in respect of two tweets made by Katie Hopkins which suggested that Jack Monroe condoned and approved of the vandalism of a women’s war memorial in Whitehall.
In doing so, Warby J rejected Hopkins’ 11 arguments that the tweets had not caused serious harm to Monroe’s reputation, as required by section 1 of the Defamation Act 2013.
Serious harm was established on the ‘straightforward basis that the tweets complained of have a tendency to cause harm to the claimant’s reputation in the eyes of third parties, of a kind that would be serious for her’, and without the need for a forensic evidential review as to whether serious harm had in fact occurred.
The judge also referred to the substantial costs that had been incurred (Hopkins was ordered to pay £107,000 on account in respect of Monroe’s legal costs), which he pointedly observed had ‘largely been incurred in contesting the issue of whether a statement which on its face had a defamatory tendency had actually caused serious harm’.
The case provides a further indication that the court is concerned about the level of costs being incurred by the parties on the issue of serious harm. Since the Defamation Act 2013 came into force the court has on several occasions ordered that the question of whether serious harm had been caused be determined by way of preliminary issue.
In Theedom v Nourish Training Ltd [2015] EWHC 3769 (QB), His Honour Judge Moloney QC resolved that issue in the claimant’s favour after a three-day hearing in which witnesses for both parties gave evidence and were subject to cross-examination. The judge observed that the routine listing of preliminary issue trials was likely to increase the costs and delay of libel cases, which was contrary to parliament’s intention in passing section 1 of the Act.
In Monroe, Warby J found that where the statements complained of had a serious defamatory tendency and had been widely published, a claimant may choose to rely on those facts alone to meet the serious harm threshold. This potentially reduces the scope for defendants to resist claims by arguing that no evidence of serious harm to reputation had been adduced.
Serious harm is still a relatively new concept, and as the judges and parties seek to grapple with its meaning, it is to a certain extent inevitable that increased costs will be incurred while litigants establish what constitutes serious harm in a particular context. For example, the Monroe case was one of the first to deal with defamation by Twitter, with Hopkins arguing that the social media platform is the ‘Wild West’ where vulgar and crude statements are par for the course.
However, the lesson from the judgment is that defendants who have made prima facie defamatory statements would be better off engaging in settlement discussions than seeking to defend proceedings on the basis of an apparent absence of evidence of serious harm.
Andrew Pavlovic is a senior associate at Russell-Cooke