If (as Sir Ivor Jennings said) “conventions… provide the flesh that clothes the dry bones of the law”, then for any UoL examiners (and at this stage of my law studies I can only imagine) it must surely be apposite, relevant cases that make their day, as they wade through script after script, in those nerve wracking weeks that occupy the interregnum between completing an exam and finding out just how badly or well (remaining optimistic) we as students have performed.
So imagine their joy at a brand new, as yet to be decided, case.
Just such an opportunity has been given to all tort students, as the media is awash with the libel case that is unfolding between @MsJackMonroe and @KTHopkins. I have knowingly used the Twitter monikers of the parties, otherwise known as food writer and ‘campaigner’ Jack Monroe, and Mail Online columnist Katie Hopkins, as much if not all of the case will focus on what constitutes libel on the social media platform Twitter.
The facts are not disputed.
The Twitter feed (following an incident in which memorial to the women of the second world war in Whitehall was vandalised with the words “Fuck Tory scum” during an anti- austerity demonstration) ran as follows:
@KTHopkins: Scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom. Grandma got any more medals?
@MsJackMonroe: I have NEVER ‘scrawled on a memorial’. Brother in the RAF. Dad was a Para in the Falklands. You’re a piece of shit.
followed by a second message:
@MsJackMonroe: Dear @KTHopkins, public apology + £5K to migrant rescue and I won’t sue. It’ll be cheaper for you and v satisfying for me
Hopkins deleted the first tweet but responded with:
@KTHopkins: Can someone explain to me – in 10 words or less – the difference between irritant @PennyRed and social anthrax @MsJackMonroe.
The significance of @PennyRed is that this was a case of mistaken identity.
Minutes previously Laurie Penny, a columnist for the New Statesman, had tweeted from her account @PennyRed that she “[didn’t] have a problem” with the vandalism as a form of protest, as “the bravery of past generations does not oblige us to be cowed today”; Hopkins had crossed her wires and the rest of the exchange is history.
Now any tort student will be aware of the basics when approaching a defamation case, and a large number of answers will open in the following way:
Winfield defined defamation as “The publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him.” to which must be added the requirement for ‘serious harm’ as per s.1 Defamation Act 2013 etc.
But here it is likely that even the more seasoned commentators will begin to run dry. The generalities may well flow; with even the Ministry of Justice (quoting Eric Brendt) acknowledging that prior to reform:
“the previous law on libel cases had been criticised as being antiquated, costly and unfair, which resulted in a chilling effect on freedom of expression and the stifling of legitimate debate.”
but just how this particular case will be decided remains in the balance with Mr Justice Warby reserving judgment until later this month.
With Hopkins’ counsel trying to diminish the impact of the events, likening Twitter to the ‘wild-west’ of social media; William Bennet (Monroe’s barrister) was having none of it, actively rejecting the idea that “people don’t believe what they read on Twitter”.
Even though the tweet was deleted some 2 hours later, @KTHopkins has some 681.7 thousand followers, and is herself no stranger to actions in defamation. The Guardian confirming that “in December, Mail Online was forced to pay £150,000 to a British Muslim family over a column by Hopkins which falsely accused them of extremism after they were stopped by US immigration officials en route to Disneyland.” Few can doubt the unpleasantness of the content. Certainly lacking in any, let alone a ‘substantial degree’ of
truth, the question will certainly focus on the potential for serious harm as to Monroe’s ‘reputation’.
As her counsel stated:
“Even if Twitter is the wild west, which we dispute, that doesn’t exclude it from the operation of the law. Even the wild west had local marshals to ensure people weren’t bullied.”
The outcome will be watched carefully by all tort students and scholars, as we will get to learn whether the Defamation Act 2013 really does have adequate ‘nuance’ to protect an individual’s reputation, and/or we have moved into a new era of tweet and be damned.
Sections 2–4 of the Defamation Act 1996 might have offered Hopkins a way out. Though not strictly a ‘defence’, more a form of ‘settlement’; nonetheless this would have required her to publish a ‘correction and apology’, and to pay Monroe determined compensation and costs. With self-reflection not exactly being Hopkins’ strong suit she apparently decided to play hard-ball (see: https://www.theguardian.com/uk-news/2017/mar/01/katie-hopkins-should- pay-price-over-libel-trial-strategy-say-lawyers) it remains to be seen if such a non- apologetic strategy works in (or against) her favour.
Your thoughts on the matter would be every bit appreciated; or you could just tweet me at @markpummell if you think that advisable.