Monroe v Hopkins: defamation and the “serious harm” test

Monroe v Hopkins: defamation and the “serious harm” test

The judgement of Mr Justice Warby from the widely publicised Monroe v Hopkins defamation case is one of the first to provide guidelines on the meaning of the new “serious harm” threshold in defamation law.

“No such thing as a Twitter outlaw." 

This was the comment of Jack Monroe’s solicitor following judgment in the widely publicised defamation case of food writer Monroe against tabloid columnist Katie Hopkins, both Twitter users, which concerned tweets by Hopkins accusing Monroe of vandalising a war memorial, or at least of condoning such behaviour. 

The judgment of Mr Justice Warby is also interesting for its comments about defamation on Twitter.

What is Defamation?

Defamation includes libel (written) and slander (spoken).

Before the Defamation Act 2013 came into force, written publications, whether in newspapers, or on social media, or elsewhere, were libellous if they caused the reputation of the claimant to be lowered in the estimation of right-thinking people. 

Section 1 of the 2013 Act was an attempt by Parliament to weed out less deserving libel claims, and added the requirement that “serious harm” must be caused to the claimant.

Hopkins denied that her tweets carried the meaning Ms Monroe complained of, denied that they were defamatory, or that they had caused serious harm.

The High Court in this case had to decide:

  1. The meaning of the tweets complained of
  2. Whether they had a defamatory tendency
  3. Whether the serious harm requirement was satisfied

When deciding on the meaning, the Court has to put itself in the position of the ordinary hypothetical reader. 

That is a fine balance between someone who is:

  • “Not naïve, but not unduly suspicious”
  • Not “avid for scandal” but who can read some degree of implication 

The intention of the publisher is irrelevant. So it was irrelevant that when tweeting, Ms Hopkins had confused Monroe with another tweeter and columnist for the New Statesman Laurie Penny (@PennyRed). 

The judgment is interesting for its comments about the nature of the “dynamic and interactive world of Twitter”, and the difficulties in applying long-established case-law on meaning to Twitter, which was developed with reference to more traditional publications such as newspapers or magazines.

The court said it would be wrong to elaborately analyse a 140-character tweet, and that an impressionistic approach was more fitting for Twitter. But still taking into account maters of ordinary general knowledge and matters that had been put before that hypothetical reader via Twitter.

Monroe’s claim was that the meaning of the tweets was she had either desecrated the war memorial herself and committed a criminal act, or that she had condoned or approved of the vandalism.

Hopkins's position was that they meant no more than Monroe was supportive politically of those who had vandalised the memorial.

Defamatory tendency

The court acknowledged the term “right-thinking people” refers to common standards, and that in a diverse society there are of course views of which some people approve and some disapprove.

If only a certain section of society would find the tweets lowered Ms Monroe in the estimation of right-thinking people, they would not be defamatory. 

The court considered that criminal behaviour was generally disapproved of by right-thinking people and they would disapprove of people who condoned criminality. 

Vandalising public monuments is a criminal offence. So the court had little difficulty in finding the tweets were defamatory.

Serious harm

Ms Monroe’s evidence to the court convinced the judge that she had been very upset by the tweets.

Ms Hopkins pointed out Ms Monroe had made light of what had been said to her own followers, and had revelled in the prospect of suing her.

The court found this did not take away from how Ms Monroe felt about the tweets, which was “completely horrified”. Both at the fact that people would think she had vandalised a war memorial, and at the abuse that would be coming her way from people who believed Hopkins’s tweets referred to her. 

It accepted Ms Monroe’s injury to feelings (in the absence of any evidence to the contrary on that point from Ms Hopkins, who did not appear at court), but said injury to feelings is not sufficient -- there must be serious harm to reputation.  

The court looked at the meaning of serious.

It made clear that while mass media publications probably mean that evidence of serious harm will not be required, it's not a “numbers game”, and harm can be serious even if published to just one person.

The court considered the practical difficulty of getting witnesses to say they read the words and thought badly of the claimant.

It went on to say the serious harm requirement was satisfied on a straightforward basis. Namely, the tweets complained of had a tendency to cause harm to Monroe’s reputation in the eyes of third parties, of a kind that would be serious for her.

In summary of a response to the points put forward in Ms Hopkins’s defence on the serious harm point, the court said:

  • Limited extent of the publication can't be relied on. There can be serious harm despite limited publication.
  • Transient publication can't be relied on to avoid a finding of serious harm, and serious impact can result from even a temporary message.
  • The limited authority of the type of publication can't be relied on to avoid serious harm, so submissions for Ms Hopkins that Twitter is the “Wild West” of social media and not as authoritative as a newspaper did not persuade the court that there was any good reason to discount what she said just because she used Twitter. (At the time she was a newspaper columnist.)
  • No evidence that the allegation was believed does not avoid the serious harm threshold being met. It does not amount to evidence of a lack of harm.
  • Although there was no “torrent of abuse” as claimed by Ms Monroe, the court still found there was some abuse resulting from the tweets, reflecting harm to reputation.
  • Rude remarks made by followers about Ms Monroe on Twitter before the tweets complained of did not mean that their rude remarks about her after publication could not be taken into account when considering harm caused. In other words, even if a person has a low opinon of another, the other’s reputation can still be harmed by a new defamatory allegation. 
  • The fact that newspaper coverage of the tweets made clear that Ms Hopkins had made a mistake and that Ms Monroe denied the vandalism did not detract from serious harm, and actually the further publication brought the matter to a whole new audience.

Mr Justice Warby summarised:

"The first tweet meant that Ms Monroe condoned and approved of scrawling on war memorials, vandalising monuments commemorating those who fought for her freedom.

"The second tweet meant that Ms Monroe condoned and approved of the fact that in the course of an anti-government protest there had been vandalisation by obscene graffiti of the women’s war memorial in Whitehall, a monument to those who fought for her freedom.

"These are meanings with a defamatory tendency, which were published to thousands. Their publication not only caused Ms Monroe real and substantial distress, but also harm to her reputation which was serious, albeit not “very serious” or “grave”.

"Ms Monroe is entitled to fair and reasonable compensation, which I assess at £24,000. There is no need for any injunction."

Click here to read the full judgment

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