Our previous blog discussed the interim hearing on the meaning of the words complained of in respect of the case brought by Chris Packham against various news outlets alleging defamation.
The trial
The matter has now concluded at a trial before Mr Justice Saini on 25 May 2023. The first and second Defendants, Mr Wightman and Mr Bean, accepted responsibility for the publication of the various offending news articles.
They, however, ran the defences that: 1. the subject matter of the allegations of fraud against Mr Packham were substantially true; and 2. The subject matter of the various articles was in the public interest. Having heard substantial oral evidence, the judge found in favour of Mr Packham in respect of his claim against the first and second Defendants. Having analysed the extent of circulation of the various publications, the judge said as follows:
“206. Mr Packham’s defamation claims against Mr Wightman and Mr Bean succeed. Mr Packham did not commit any acts of fraud or dishonesty. I will enter judgment for damages against Mr Wightman and Mr Bean in the sum of £90,000.00. I understand that they do not oppose injunctive relief.”
The more interesting part of the case from a lawyer’s perspective is the analysis of the case involving the third Defendant. The third Defendant was given credit as an editor of the first 4 articles in question at the time of publication and had re-Tweeted unaltered a number of the articles already published (i.e. articles 5-9).
The third Defendant ran a defence pursuant to the Defamation Act 1996 about whether he could be properly deemed to be an ‘author’ or an ‘editor’ of the offending articles.
In dismissing the claim in respect of the first four allegations against the third Defendant, the judge said that, whilst the mention of the third Defendant in the credits was one of the factors to weigh in the balance, it was not determinative of the issue as to whether he was an author or editor of the offending articles. The judge said:
“I also find that D1 and D2 gave by-line credits to D3 as what they termed a “gentlemanly” gesture for his giving up free time to act in the proof-reader and tidying up role. I find that D3 was not an editor. He had no editorial or equivalent responsibility for the statements complained of or the decision to publish them. Even if one was looking at D3’s acts from the perspective of joint liability under general principles of tort law, it is hard to classify his conduct as anything other than a de minimis or wholly trivial contribution to the commission of the tort by D1 and D2.”
In respect of the re-Tweeted articles, both barristers agreed that there was no case law on the issue as to whether a re-Tweet could make a party an author or editor in respect of defamatory comments.
The judge accepted that the issue was not determinative in this case due to the analysis of whether the serious harm test (required to succeed in a case of defamation) was met and accordingly decided that it was better for that issue to be left undecided until a case which turns on that point of law. In dismissing the remainder of the claim against the third Defendant, the judge said:
“67. Where a claimant chooses to sue on a number of publications, it is necessary to prove serious harm in respect of each. That is an issue of fact to be established at trial. In the present case, in order to succeed in respect of any of the D3 Retweets, Mr Packham must establish that the particular retweet has caused “serious harm”.
In accordance with conventional principles of causation, a case of serious harm in a claim against the tweeter can include any harm caused by retweets. They are, generally, a foreseeable consequence of tweeting. Where a retweet is the very publication complained of, the relevant harm is limited to that caused by the dissemination of the tweet as a result of the retweet.
At the risk of stating the obvious, a claimant cannot rely on the total harm caused by the (original) tweet or the retweets of others. A claimant’s pleaded case should include reference “to the consequences (or probable future consequences) of publication, including the extent of publication, and the impact of the words complained of”…Pleading a full case may depend on disclosure from a defendant (or obtaining third party analytics) but well before the trial is reached a claimant needs to have particularised the case to be pursued. That was not done in this case. There is bare pleading of harm…and no evidence from Mr Packham nor any expert evidence which specifically addresses that impact.
I accept that reliance on inference is, in principle, permissible “although the facts and matters said to support the inference will have to be pleaded”…Simply asserting retweeting is not sufficient as a pleading of facts allowing an inference to be drawn in the case of a person with a minor tweeting profile such as D3. It does not tell a defendant or a court how and why the specific tortious act is said to have had an actionable impact.”
Comment
This analysis of serious harm is a clear warning to those pursuing a claim in defamation to set out exactly how it is alleged the test of serious harm is met. This is not an easy task in many cases and accordingly, it is essential that expert advice is sought at an early stage so as to ensure the best chance of success at trial.
How can we help?
Kevin Modiri is a Partner in our expert Dispute Resolution team.
If you have any questions concerning the subjects discussed in this article, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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