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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Monroe v Hopkins  EWHC 433 (QB) (10 March 2017)
Cite as:  4 WLR 68,  EMLR 16,  WLR(D) 188,  EWHC 433 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| JACK MONROE
|- and -
Jonathan Price (instructed by Kingsley Napley) for the Defendant
Hearing dates: 27, 28 February, 1 March 2017
Crown Copyright ©
Mr Justice Warby :
The history in short
(1) At 8pm, a Twitter user with the handle @Little_G2 tweeted @PennyRed, sending a photograph of the vandalised memorial and asking @PennyRed to comment on it.
(2) At 8.01pm @PennyRed commented: "@Little_G2 @CCriadoPerez actually, I think that's fine, and many of those women would have agreed. Sadly they were not able to vote." This comment was RT'd 25 times.
(3) At 8.04pm @PennyRed tweeted a photograph of the vandalised war memorial with the accompanying words: "I don't have a problem with this. The bravery of past generations does not oblige us to be cowed today." This tweet generated a deal of comment, much of it adverse. This tweet was RT'd 356 times, liked 226 times and replied to in 618 tweets.
(4) At 9.40pm Ms Hopkins tweeted a photograph of the vandalised war memorial, and a link to @PennyRed's tweet of 8.04pm with these observations:
"@PennyRed thinks this is OK. Burn her passport, bulk buy her lube & make her a woman of ISIS". This was RT'd 135 times.
(5) At 10.33pm Ms Hopkins tweeted again, with a photograph of the war memorial and a hyperlink to @PennyRed's homepage: "if @PennyRed was my daughter, she would be out tonight scrubbing this clean with her tongue for what she has said." This was RT'd 529 times.
(1) Metro reported under the headline "Katie Hopkins: Woman who agreed with memorial graffiti 'should be bought lube and made woman of Isis'"
(2) The Daily Star published a piece headed, "'Send her to be raped by ISIS': Gobby Hopkins' horror tweet to left-wing writer"
(3) The Independent published an article headed "Katie Hopkins trounces Laurie Penny in battle of offensiveness over anti-Tory graffiti, suggests she should be 'made a woman of Isis'"
17. On 18 May 2015:-
(1) 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?"
(2) 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)
(3) 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)
(4) 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."
(5) At some point between the posting of that tweet and 9.47pm, the First Tweet was deleted by Ms Hopkins.
(6) 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
(7) 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.
(8) 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)
(9) 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."
"… the words were highly defamatory of Ms Monroe and have caused a huge amount of stress and trouble.
Despite those tweets being made by Ms Penny, it is clear that you thought they had been made by Ms Monroe. Quite clearly your followers, who number over half a million, shared the confusion that you promoted and consequently Ms Monroe was subjected to a torrent of abusive and vile comment.
When it was pointed out by you to Ms Monroe that you had made a mistake you decided not to take action but instead aggravated the position by tweeting (at 9:47pm)…"
"…We are taking urgent instructions from our client and will be in a position to respond substantively to your correspondence in the early part of next week. In the meantime, it would be premature to issue proceedings, particularly in circumstances where the tweet has been removed months ago, and a retraction made. If it assists, we can also reassure your client that there is no possibility that our client will repeat the words complained of or similar in the future.
In such circumstances, it would seem sensible to pause before issuing a claim, particularly where we have not explored with you the quantification of any serious harm or losses that your client claims to have settled."
(1) Libel consists of the publication by the defendant to one or more third parties of a statement about the claimant which has a tendency to defame the claimant, and causes or is likely to cause serious harm to the claimant's reputation.
(2) Whether a statement about the claimant has a defamatory tendency is determined according to common law principles identified in Jeynes v News Magazines Ltd  EWCA Civ 130, Thornton v Telegraph Media Group Ltd  EWHC 1414 (QB)  1 WLR 1985, and Modi v Clarke  EWCA Civ 937. In short, the answer depends on (a) the single meaning that would be conveyed by the statement to a hypothetical ordinary reasonable reader and (b) whether that meaning is one that would tend to have a substantially adverse effect on the way that right-thinking members of society generally would treat the claimant. As this summary suggests, the answer is arrived at objectively, and not by reference to evidence of what people actually thought the statement meant, or how they reacted in fact.
(3) Most cases turn on the "natural and ordinary meaning" that the ordinary reasonable reader would take from a statement. But there are cases in which the answer to the question, "what does statement X mean?" will be altered by facts outside the statement itself, which are not matters of common knowledge. If readers of the statement complained of were aware of such extraneous facts, and that knowledge would affect the way that an ordinary reasonable person would understand the statement, there will be an "innuendo" meaning. By these means an otherwise innocent statement may be defamatory, or an otherwise defamatory statement innocent, in the eyes of readers aware of the "innuendo facts". The principles are stated in Fullam v Newcastle Chronicle & Journal  1 WLR 651 and McAlpine v Bercow  EWHC 1342 (QB) -.
(4) But "A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the claimant's reputation": s 1 Defamation Act 2013. This provision ("the Serious Harm requirement") means that it is not enough to prove that a statement had a defamatory tendency. A claimant must prove as a matter of fact that their reputation suffered, or is likely to suffer, serious harm as a result of the publication complained of.
What did the tweets mean?
The rival cases
"(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non- defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant.
(5) The article must be read as a whole, and any "bane and antidote" taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, "can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation … (8) It follows that "it is not enough to say that by some person or another the words might be understood in a defamatory sense."..."
"… part of the description of the hypothetical reasonable reader, rather than as a prescription of how such a reader should attribute meanings to words complained of as defamatory. If there are two possible meanings, one less derogatory than the other, whether it is the more or the less derogatory meaning that the court should adopt is to be determined by reference to what the hypothetical reasonable reader would understand in all the circumstances."
Principles applied to Twitter
Discussion and conclusions
Did the tweets' meaning(s) have a defamatory tendency?
The extent of publication
"… the issue is not the actual state of mind of the defendant. It is whether the claimants have suffered additional injury to feelings as a result of the defendant's outward behaviour. If the defendant has behaved in a way which leads the claimants reasonably to believe he acted maliciously that is enough."
"46. …. Serious" is an ordinary word in common usage. Section 1 requires the claimant to prove as a fact, on the balance of probabilities, that the statement complained of has caused or will probably cause serious harm to the claimant's reputation. …
47. Secondly it is open to the claimant to call evidence in support of his case on serious harm and it is open to the defendant to call evidence to demonstrate that no serious harm has occurred or is likely to do so. However a Court determining the issue of serious harm is, as in all cases, entitled to draw inferences based on the admitted evidence. Mass media publications of very serious defamatory allegations are likely to render the need for evidence of serious harm unnecessary. This does not mean that the issue of serious harm is a "numbers game". Reported cases have shown that very serious harm to a reputation can be caused by the publication of a defamatory statement to one person.
48. Thirdly there are obvious difficulties in getting witnesses to say that they read the words and thought badly of the claimant, compare Ames v The Spamhouse Project  EWHC 127 (QB) at paragraph 55. This is because the claimant will have an understandable desire not to spread the contents of the article complained of by asking persons if they have read it and what they think of the claimant, and because persons who think badly of the claimant are not likely to co-operate in providing evidence.
49. Fourthly, where there are publications about the same subject matter which are not the subject of complaint … there can be difficult points of causation which arise…
50. Fifthly, as Bingham LJ stated in Slipper v BBC  QB 283 at 300, the law would part company with the realities of life if it held that the damage caused by publication of a libel began and ended with publication to the original publishee. Defamatory statements are objectionable not least because of their propensity "to percolate through underground channels and contaminate hidden springs" through what has sometimes been called "the grapevine effect". However it must also be noted that Bingham LJ continued and said "Usually, in fairness to a defendant, such effects must be discounted or ignored for lack of proof" before going on to deal with further publications which had been proved to be natural, provable and perhaps even intentional results of the publication sued upon."
"it is important to bear in mind that s 1 is essentially a threshold requirement, intended by Parliament to weed out those undeserving libel claims otherwise technically viable, but which do not involve actual serious harm to reputation or likely serious harm to reputation in the future."
(1) The extent of publication. Reliance is placed on the allegedly limited extent of publication of the First Tweet, and its deletion "around two hours" after first publication. I have dealt with and rejected Ms Hopkins' case on these points.
(2) Transience. It is true that the First Tweet was transient. The Second Tweet less so, although any tweet disappears from the reader's view as time goes on. But this is a weak point. What matters, when considering transience, is not the period of time for which a person is exposed to the message but the impact the message has. It is a commonplace of experience that live broadcasts can have a powerful impact, even if the viewer sees them once only. Print copies of newspapers are not often read more than once.
(3) The credibility of the publisher in the eyes of publishees. This is clearly a relevant question. Skilfully treading a somewhat delicate line, Mr Price submits that Twitter is the "Wild West" of social media, and not as authoritative as (for instance) The Sun or the Daily Mail, which are established institutions, subject to regulation, that employ lawyers to check copy. On the facts of this case, I do not find this submission persuasive. I shall come to the question of whether Ms Hopkins' mistake was or would have been obvious to all. But there is no good reason to conclude that a reader would discount the allegation because of who Ms Hopkins is, or the fact that she published on Twitter. She is a well-known figure. She made clear at the time she was a Sun columnist.
(4) The absence of evidence that the allegation was believed. There is a dearth of such evidence, but this is a commonplace of litigation in this field and understandable for reasons identified by Dingemans J in Sobrinho. It is said to be remarkable, bearing in mind how uninhibited people are on Twitter, that there is nothing indicating that a person changed their position in respect of Ms Monroe as a result of the tweets. I think this submission lacks a sound evidential basis. I am not persuaded that the absence of evidence of this kind is evidence of a lack of harm.
(5) Evidence that "no harm was done" to Ms Monroe's reputation. This is said to be "obvious" from contemporaneous social media activity. I reject this. There is some evidence of social media activity suggesting that some people paid little attention to what had been said. But this represents only a fraction of the readership, and there is no sound basis on which to infer that it is representative of the whole. Certainly, some people realised that Ms Hopkins had mistaken Ms Monroe for Ms Penny, and did so before the half-hearted early morning tweet of 2 June. But the evidence does not persuade me that this was a universal realisation. I deal with media coverage of 19 May separately, below.
(6) The question of whether Ms Monroe suffered or did not suffer a torrent of abuse as a consequence of the tweets (the "torrent" point). This is also an issue to which I shall devote a little more attention below. My conclusion is that "torrent" is probably something of an overstatement, and much of what is relied on cannot be shown to be causally linked to the tweets complained of. But I accept that there was some abuse resulting from the tweets complained of, and reflecting harm to reputation.
(7) The state of Ms Monroe's existing standing or reputation in the eyes of the publishees. As Mr Price accepts, a defendant who wishes to prove that a claimant had an existing bad reputation must plead and prove it. That has not been done. Instead, Mr Price relies on documentary evidence that the (as he would say) few who abused Ms Monroe in the aftermath of the tweets complained of were people who were "already making the same or similar comments about her before the tweets". That is what the analysis of Ms Harris tends to show. This is a tricky area. In principle, evidence of bad reputation, however it may come into a case, is relevant only if it goes to the same sector of the claimant's reputation. This evidence is not clearly of that nature. But even assuming this is a legitimate line to take (which may be debatable) I do not think this is a matter to which any great weight should be attached. It is not safe to infer that a claimant's reputation has not been harmed by a specific defamatory allegation just because a person who makes rude remarks about the claimant after publication also made rude remarks about her before.
(8) Another variant of this point is put forward: that those who engaged with the tweets were users who were already strongly supportive of Ms Monroe, or strongly opposed to her; in summary, people "whose opinions of the parties can't be shifted." This comes dangerously close to evidence of bad reputation by the back door. Besides, I am not convinced that this is how people actually think, at least not in the mass. A person can have a low opinion of another, and yet the other's reputation can be harmed by a fresh defamatory allegation. An example is provided by serious allegations made against a politician of a rival party. I have recently held that it does not follow from the fact that a publishee is a political opponent of the claimant, that they will think no worse of the claimant if told that he or she has covered up sexual abuse: Barron v Collins  EWHC 162 (QB) . The same line of reasoning is applicable to the different facts of this case. As Mr Bennett puts it, if someone is hated for their sexuality or their left-wing views, that does not mean they cannot be libelled by being accused of condoning the vandalisation of a war memorial. It can add to the list of reasons to revile her.
(9) 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.
(10) National and international media coverage of the tweets complained of, Ms Monroe's reaction to them, "and the matter generally" on 19 May 2015. Nine articles are relied on. Three are in mainstream English newspapers (Metro, The Mirror and The Independent). The others are in the Belfast Telegraph, the Huffington Post, and a range of lesser known outlets. All are said to have been published "within hours". I am invited to infer that their publication meant that anyone with an interest in either party will have become aware that Ms Hopkins had made a mistake, Ms Monroe denied having vandalised anything, and intended to sue, that there was no attempt to justify what had been said. It is also suggested, in mitigation, that readers of these media would have realised that "the claimant considered that she could make £5,000 in damages because of the tweets" (sic). This last contention seems to me offensive in its formulation, implying that compensation would be some kind of gain for the claimant. Otherwise, I would not attach any great weight to this point. The majority of the media coverage was in publications of the left, and it is not likely there was a substantial overlap with the defendant's own readership. The coverage did not amount to an authoritative or comprehensive refutation of the original allegation. As Mr Bennett points out, there was a potentially harmful impact of this publication, as it brought the whole matter to the attention of a fresh audience.
(11) The defendant's tweet of 2 June 2015. This was several weeks later, early in the morning. It was not self-explanatory. It was inconspicuous and carried no apology. It was sent as a reply, and hence to the common followers only.
"That sum must  compensate him for the damage to his reputation;  vindicate his good name; and  take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation the most important factor is [a] the gravity of the libel; …. [b] The extent of publication … [c] A successful plaintiff may properly look to an award of damages to vindicate his reputation … [and] [d] compensatory damages may and should compensate for additional injury caused to the plaintiff's feelings by the defendant's conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way. Although the plaintiff has been referred to as "he" all this of course applies to women just as much as men."
Summary of Conclusions
- Notifications (a private tab which sends @Person 'alerts' or 'notifications' of activity relating to tweets by, or mentioning, @Person); &
- Direct Messages or "DMs" (private messages between Twitter users, formerly only between users who followed each other).
For example, if @A is on Twitter only between 0900 until 1000 and 1800 until 1900, they may not see a tweet by @Person at 1200, because by the time they log back on to Twitter at 1800, so many tweets by the people that @A follows have been tweeted that @Person's tweet is a long way down the Timeline. So Impressions records the number of times that a tweet is actually generated on a screen (of a phone/laptop) by a viewer of the tweet who is active at that time.
- @Person's Profile page;
- in the Timelines of those who follow @Person
- on the Profile pages of RTers
- in the Timelines of those who follow the RTers
- 'Like' the tweet (by clicking on a 'heart' or 'star' logo);
- Reply to the tweet (which starts the Reply with the usernames contained within the tweet, including that of the tweeter or any RTer);
- Expand the tweet (to see all Replies to it);
- Click on any hyperlink in the tweet
- Click on any hashtag, which launches a Twitter search for all tweets containing that particular hashtag
- Click on the permalink (a small link to the tweet's unique URL)
- Click on @Person's username (a link to @Person's Profile page)
- Follow the tweeter (@Person) if they don't do so already
- The numbers of some Engagements (RTs, Replies, Likes) are recorded on the public face of the tweet, at the bottom.
- Other Engagements (Impressions, Expands, Hashtag clicks, Hyperlink clicks, Username clicks) are not on the public face of the tweet, and are only available through the Twitter Analytics service to @Person.
Note 1 See How Twitter Works @ . [Back] Note 2 Jameel v Dow Jones & Co. Inc.  EWCA Civ 75,  QB 946 [Back]
Note 1 See How Twitter Works @ . [Back]
Note 2 Jameel v Dow Jones & Co. Inc.  EWCA Civ 75,  QB 946 [Back]