Monroe v Hopkins [2017] EWHC 433 (QB)

Katie Hopkins tweeted suggesting food blogger Jack Monroe had vandalised, or condoned vandalism of, a war memorial, having confused her with another writer. Warby J held the tweets defamatory, satisfied the s.1 Defamation Act 2013 serious harm test, and awarded £24,000.

Facts

The claimant, Jack Monroe, is a food blogger, writer and left-wing political commentator with around 70,000–75,000 Twitter followers at the relevant time. The defendant, Katie Hopkins, is a journalist and columnist (then writing for The Sun, later MailOnline) with around 570,000 followers and a Twitter homepage receiving over 5.7 million visits per month.

On 9 May 2015 an anti-austerity demonstration in London turned violent and the Memorial to the Women of World War II in Whitehall was defaced with the words “Fuck Tory Scum”. The journalist Laurie Penny (@PennyRed) tweeted a photograph of the vandalised memorial with the words “I don’t have a problem with this. The bravery of past generations does not oblige us to be cowed today.” Ms Hopkins publicly and forcefully denounced Ms Penny for that view.

On 18 May 2015, apparently confusing Ms Monroe with Ms Penny, Ms Hopkins posted the “First Tweet”: “@MsJackMonroe scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom. Grandma got any more medals?” Ms Monroe (who came from a military family and was in fact “sickened” by the vandalism) immediately denied the allegation and asked for its deletion, then offered to settle for a public apology and a £5,000 donation to migrant rescue. The First Tweet was deleted after roughly 2 hours 25 minutes. Ms Hopkins then posted the “Second Tweet”: “Can someone explain to me – in 10 words or less – the difference between irritant @PennyRed and social anthrax @Jack Monroe.” She blocked Ms Monroe.

Solicitors’ correspondence followed. On 2 June 2015 Ms Hopkins tweeted “@MsJackMonroe I was confused about identity. I got it wrong.” No apology was made and no charitable payment offered. Proceedings were issued in December 2015. Only Ms Monroe gave oral evidence; Ms Hopkins did not give evidence, relying instead on witness statements from her solicitor analysing Twitter records, and on agreed facts and an agreed schedule, “How Twitter Works”, appended to the judgment.

Issues

Warby J identified three liability issues at [3]:

1. What meanings were borne by the two tweets?
2. Whether those meanings had a defamatory tendency at common law?
3. Whether it had been proved that the serious harm requirement in s.1 of the Defamation Act 2013 was satisfied?

If liability was established, the court also had to assess damages and decide whether an injunction was needed.

Arguments

For the claimant (Mr Bennett and Mr Callus)

The First Tweet bore the natural and ordinary meaning either that Ms Monroe had herself vandalised a war memorial and thereby desecrated the memory of those who fought for her freedom, committing a criminal act, or alternatively that she condoned or approved of such criminal vandalisation. The Second Tweet bore an innuendo meaning that she approved or condoned the vandalisation, the innuendo facts being the vandalism, the public outrage, Ms Penny’s tweet and the reporting of it, Ms Hopkins’ condemnation of Ms Penny, and the recent publication of the First Tweet. Spraying graffiti on public monuments is a criminal offence and right-thinking people would strongly disapprove of anyone condoning it. On extent of publication, the claimant relied on pro-rata calculations from the 5.74 million monthly profile views and on Twitter Analytics for surrounding tweets to estimate 20,000–25,000 readers of the First Tweet.

For the defendant (Mr Price)

The tweets did not suggest Ms Monroe had herself vandalised anything; read in full context they meant only that she “was supportive – politically – of those who had painted the slogan onto the monument”. The Second Tweet would have been read as “no more than a petulant acknowledgment” of the mistaken identification, or alternatively bore the same meaning as the First. Even if the tweets meant she was politically aligned with those responsible, that was not defamatory: it would offend only a section of society, not right-thinking people generally. On extent of publication, the First Tweet was an “at reply” going only to a small pool of common followers (estimated at 140) and the claimant’s estimates were guesswork. On serious harm, the defence relied on limited and transient publication, the “Wild West” nature of Twitter as against regulated newspapers, the absence of evidence that anyone believed the allegation or changed their view, evidence that abusive tweeters were already hostile to Ms Monroe, the claimant’s own vigorous Twitter denials, and the extensive media coverage of 19 May which made clear the mistake. Mr Price also invited the court to “extend” the concept of context to embrace matters “in the wider realm of Twitter generally as it was being experienced by the hypothetical ordinary reader at the relevant time”.

Judgment

Meaning and the approach to Twitter

Warby J restated the familiar principles on meaning, citing Jeynes v News Magazines Ltd [2008] EWCA Civ 130, Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB), [2011] 1 WLR 1985, Modi v Clarke [2011] EWCA Civ 937, Fullam v Newcastle Chronicle & Journal [1977] 1 WLR 651, McAlpine v Bercow [2013] EWHC 1342 (QB), Charleston v News Group Newspapers Ltd [1995] 2 AC 65 and Simpson v MGN Ltd [2016] EWCA Civ 772. He emphasised the neutrality of the exercise: the court must not select the most defamatory available meaning, but nor should it lean the other way.

Applying those principles to Twitter, the judge said at [35]:

“The most significant lessons to be drawn from the authorities as applied to a case of this kind seem to be the rather obvious ones, that this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet.”

On the boundaries of context, he held that a matter can be treated as known to the reader if it was so well-known that for practical purposes everybody knew it, or if it forms part of the tweet itself (such as hyperlinked material). As to other Twitter material, he concluded at [38] that a matter can be treated as context “if it is on Twitter and sufficiently closely connected in time, content, or otherwise that it is likely to have been in the hypothetical reader’s view, or in their mind, at the time they read the words complained of”, a test influenced by (but not identical to) that in Dee v Telegraph Media Group Ltd [2010] EWHC 924 (QB), [2010] EMLR 20. He noted that tweets from days beforehand would not necessarily count, since they “disappear from view quite swiftly, for regular users” [39], and that context for which a defendant is not responsible cannot be held against them on meaning, although it may work to their advantage.

He declined to adopt Mr Price’s broader formula, considering it vague and over-ambitious and liable to “erode the rather important and principled distinction between natural and ordinary meanings and innuendos” [40]. He observed, though no objection was taken, that a defendant wishing to rely on such background should plead it, by way of innuendo or context, at an early stage [41].

On the First Tweet, the judge rejected the literal meaning that Ms Monroe had herself defaced a memorial; the reader would see an element of metaphor. He held it an “inescapable conclusion” [43] that the ordinary reasonable reader would understand it to mean that Ms Monroe “condoned and approved of scrawling on war memorials, vandalising monuments commemorating those who fought for her freedom.” He rejected the suggestion that all readers of Ms Hopkins’ homepage knew the background events of nine days earlier, but accepted that many did; for those readers the innuendo meaning was a more specific version of the same imputation. The natural and ordinary meaning found was in fact not very different from that contended for by the defendant, save for the word “politically”, which the judge regarded as “a rhetorical flourish that is not part of the meaning” [46].

The Second Tweet was complained of only by innuendo. Warby J accepted that readers with knowledge of the innuendo facts (including the very recently deleted First Tweet) would understand Ms Hopkins to be acknowledging her mix-up, but would read the “defiant” tweet as asserting that the mistake made no difference and that Ms Monroe was even worse than Ms Penny, thereby conveying the same innuendo meaning as the First Tweet [48]–[49].

Defamatory tendency

The judge accepted the defendant’s statement of principle that a statement is not defamatory if it would only tend to affect the attitudes of a section of society, and that attributing political views which some deplore is not enough. But he held the submission “rather misses the point” [51]. The relevant test was whether the attributed conduct or views are contrary to the common, shared values of society; one test being whether the conduct is illegal or, by society’s standards, immoral (referring to Tugendhat J’s categorisation in Thornton). Spraying graffiti on public monuments is a criminal offence and socially harmful, and:

“Respect for those who gave their lives, or put themselves in danger, or played roles in the World Wars is a significant aspect of the shared values of our society.” [52]

The judge noted there was no apparent link between the political cause and the monument attacked, and the vandalism occurred in peacetime after a properly conducted General Election. He had “no doubt” both meanings were defamatory at common law [53].

Extent of publication

Although the First Tweet was an “at reply” reaching the timelines of only about 140 common followers, it sat at the top of Ms Hopkins’ very heavily visited homepage for about 2 hours 25 minutes and was retweeted. Its deletion (at Ms Monroe’s own request) had made the Twitter Analytics unavailable, so estimation was required. Rejecting the submission that no figure could safely be given as “not only unattractive but also unrealistic” [58], the judge accepted the claimant’s two methods of estimation (pro-rating monthly profile views over waking hours, and comparison with Analytics for surrounding tweets, applying a 60% discount to impressions to reach a readership figure). He found readership “comfortably into five figures”, with around 20,000 a reasonable and probably conservative estimate, plus retweets probably in the hundreds. The Second Tweet was the most impactful of the tweets covered by the Analytics, with a readership estimated at around 100,000.

Serious harm under s.1

Warby J adopted the propositions of Dingemans J in Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB), [2016] EMLR 12 at [46]–[50], including that injury to feelings alone, however grave, cannot suffice; that inferences may be drawn from admitted evidence; and that there are obvious evidential difficulties in obtaining witnesses who will say they read the words and thought worse of the claimant. He also cited Ames v Spamhaus Project Ltd [2015] EWHC 127 (QB), [2015] 1 WLR 3409 and HHJ Moloney QC’s observation in Theedom v Nourish Training Ltd [2015] EWHC 3769 (QB), [2016] EMLR 10 that s.1 is “essentially a threshold requirement”.

Noting that the defence had generated “no less than 11 main issues” on serious harm, the judge reached his conclusion “on the straightforward basis that the tweets complained of have a tendency to cause harm to this claimant’s reputation in the eyes of third parties, of a kind that would be serious for her” [70], before addressing each defence point in summary form. He rejected the arguments based on limited publication and transience (what matters is impact, not duration of exposure), on Twitter’s supposed lack of credibility (Ms Hopkins was a well-known figure who identified herself as a Sun columnist), and on the absence of evidence of belief (“I am not persuaded that the absence of evidence of this kind is evidence of a lack of harm” [71(4)]). Evidence that some readers realised the mistake represented only a fraction of the readership.

On the argument that those who abused Ms Monroe were already hostile to her, the judge said this came “dangerously close to evidence of bad reputation by the back door” and that a person can have a low opinion of another and yet that other’s reputation can still be harmed by a fresh allegation, applying the reasoning in Barron v Collins [2017] EWHC 162 (QB) [56]. Ms Monroe’s own denials did not mitigate significantly: denials are not corrections, retractions or apologies, and she had no access to Ms Hopkins’ followers. The media coverage of 19 May was mostly in left-leaning outlets, did not amount to an authoritative refutation, and potentially brought the matter to a fresh audience. The 2 June tweet was late, inconspicuous, not self-explanatory, carried no apology and went only to common followers.

On the disputed “torrent of abuse”, the judge found causation problematic for much of the material (many of Ms Monroe’s tweets having been deleted by an auto-deletion app), and that “torrent” was probably an overstatement, but not an invention or serious distortion; there was some abuse resulting from the tweets, reflecting harm to reputation, and the impact was substantial. He concluded at [74] that while the claimant may not have proved her reputation suffered gravely, she had established serious harm within s.1.

Damages and injunction

Applying the heads of compensation identified by Sir Thomas Bingham MR in John v MGN Ltd [1997] QB 586, and having regard to Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670, Purnell v Business F1 Magazine Ltd [2007] EWCA Civ 1382, Cairns v Modi [2013] 1 WLR 1015, Barron v Vines [2016] EWHC 1226 (QB) and the ceiling identified in Raj v Bholowasia [2015] EWHC 382 (QB), the judge found the allegations serious but not near the top of the scale, publication significant but not massive, harm to reputation serious but not grave, and the need for vindication not weighty since no attempt had been made to prove truth. Ms Monroe was a public figure expected to be more robust. Injury to feelings was real, substantial and continuing, and had been “significantly exacerbated by the way the defence has been conducted” [79]. On aggravation by alleged malice, the judge reiterated his approach in Barron v Vines that the question is whether the claimant reasonably believed the defendant acted maliciously, causing additional injury to feelings, rather than the defendant’s actual state of mind; Ms Hopkins had not given evidence to rebut this.

He awarded £24,000, split £16,000 for the First Tweet and £8,000 for the Second, the larger share reflecting the greater reputational harm and immediate injury to feelings caused by the First Tweet. No injunction was granted, as there was no evidence of a threat or risk of repetition.

Observations

By way of postscript, Warby J observed that the case “may have little wider significance” [83], that it could easily have been resolved early (the £5,000 open offer being “a reasonable offer”, and an offer of amends under the Defamation Act 1996 attracting a discount of up to half), and that costs had largely been incurred contesting serious harm. He also drew attention to disclosure difficulties, noting the responsibility of a litigant to retain and preserve potentially disclosable Twitter material and of solicitors to ensure clients appreciate and perform that duty.

Implications

The judgment is one of the fuller applications of established defamation principles to Twitter. Its most useful features for practitioners are:

• Meaning on Twitter. The court endorsed an impressionistic rather than elaborate analytical approach to a 140-character tweet, while insisting that the whole tweet and its context be considered. The judge’s formulation at [38] gives a workable test for when other Twitter material forms part of the context, tied to closeness in time and content and likelihood of being in the reader’s view or mind, with the qualification that older tweets fall from view quickly.
• Context versus innuendo. The court declined to expand “context” into a general licence to rely on the wider Twitter environment, preserving the distinction between natural and ordinary meaning and innuendo, and indicated (obiter but pointedly) that a defendant relying on background material should plead it early, whether as innuendo or context.
• Defamatory tendency and political speech. The court accepted that attributing merely unpopular political views is insufficient, but held that imputing approval of criminal, socially harmful conduct – here vandalism of a war memorial – engages shared societal values. The decision does not create any special rule for political speech; it applies the ordinary common law test.
• Serious harm under s.1. The decision illustrates that s.1 remains a threshold, and that a claimant may succeed by inference from the gravity of the imputation, the scale of publication and the identity of the publishees, without direct evidence that publishees thought worse of them. The judgment also shows the court’s willingness to make a reasoned estimate of readership from imperfect data such as monthly profile views and Twitter Analytics impressions (with a discount applied), rather than treating the absence of precise figures as fatal to the claimant’s case.
• Limits. The findings are heavily fact-specific and the judge himself said the case “may have little wider significance”. He expressly did not resolve exhaustively all 11 sub-issues on serious harm; he found it unnecessary to do so. He also left open, describing it as “debatable”, whether evidence that abusive publishees were already hostile is a legitimate line at all. No finding was made as to Ms Hopkins’ actual state of mind, since she did not give evidence.

Practically, the case matters to media and social media users with large followings, to those advising on early resolution of libel claims (the judge’s comments on the reasonable £5,000 offer and the availability of the offer of amends procedure are a pointed warning about costs), and to litigants and solicitors handling social media evidence, given the express observations on preserving potentially disclosable Twitter material and the evidential consequences of deletion.

Verdict: Judgment for the claimant. Warby J held that the First Tweet meant that Ms Monroe condoned and approved of scrawling on war memorials and vandalising monuments commemorating those who fought for her freedom, and that the Second Tweet bore, by innuendo, the meaning that she condoned and approved of the vandalisation by obscene graffiti of the women’s war memorial in Whitehall during an anti-government protest. Both meanings were defamatory at common law, publication was to thousands (around 20,000 readers of the First Tweet and approximately 100,000 of the Second), and the serious harm requirement in s.1 of the Defamation Act 2013 was satisfied, although the harm was not ‘very serious’ or ‘grave’. Damages of £24,000 were awarded (£16,000 for the First Tweet and £8,000 for the Second). No injunction was granted, there being no evidence of a threat or risk of repetition.

Source: Monroe v Hopkins [2017] EWHC 433 (QB)