Rachel Riley v Laura Murray
| Jurisdiction | England & Wales |
| Judge | Lord Justice Warby,Lord Justice Dingemans,Lord Justice Arnold |
| Judgment Date | 11 August 2022 |
| Neutral Citation | [2022] EWCA Civ 1146 |
| Docket Number | Case No: CA-2022-000147 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1146
Lord Justice Arnold
Lord Justice Dingemans
and
Lord Justice Warby
Case No: CA-2022-000147
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Mr Justice Nicklin
Royal Courts of Justice Strand, London, WC2A 2LL
William McCormick QC and Jacob Dean (instructed by Carter-Ruck) for the Appellant
William Bennett QC and Godwin Busuttil (instructed by Patron Law Limited) for the Respondent
Hearing date: 21 July 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on 11 August 2022
At the trial of this libel action the claimant was awarded damages of £10,000 in respect of a tweet posted by the defendant which alleged that the claimant had stated that Jeremy Corbyn deserved to be violently attacked, denounced her for doing so, and suggested that others should never engage with her. The Judge rejected the defences of truth, honest opinion, and publication on matter of public interest that are provided for by sections 2, 3 and 4 of the Defamation Act 2013. This appeal raises issues about the interpretation and application of each of those defences in the somewhat unusual circumstances of this case.
Background to the appeal
The claimant was a well-known television presenter. She had a Twitter account with some 625,000 followers. She had spoken out publicly to condemn what she regarded as the fostering of anti-Semitism in the Labour Party under its then Leader Jeremy Corbyn. The defendant was Mr Corbyn's Stakeholder Manager. She too was on Twitter, with some 7,252 followers. So also was Owen Jones, a well-known journalist and prominent Labour supporter whose Twitter identity featured the Labour red rose. He had about 1 million followers.
On 10 January 2019, Owen Jones posted a message on Twitter making reference to an incident in which an egg had been thrown at the former leader of the British National Party, Nick Griffin:
“Oh: I think an egg was thrown at him actually. I think sound life advice is, if you don't want eggs thrown at you, don't be a Nazi. Seems fair to me.”
On the afternoon of 3 March 2019, someone assaulted Mr Corbyn by throwing an egg at him when he was visiting a mosque. There were media reports that a man had been arrested, but that Mr Corbyn had not been injured and had continued his visit following the incident. A series of tweets followed during the late afternoon and evening of 3 March.
First, at 18:16, the claimant tweeted a screenshot of Owen Jones' January 2019 tweet with the comment “Good advice”, accompanied by pictures of a red rose and an egg. This became known as “the Good Advice Tweet” or “GAT”. The GAT was a response to the attack on Mr Corbyn, as would be evident to any reader who knew of that attack. Because it is central to the issues, a copy of the GAT is annexed to this judgment.
The GAT received some 1.5m impressions, which is to say it was seen that many times. Different people responded to it differently. The evidence at trial included a large number of immediate responses. These showed that some thought it was “Rachel Riley calling Jeremy Corbyn who'd just been attacked a Nazi” and condemned her for “celebrating a physical assault on him”, “applauding his assault” and “condoning violence”. At least one called for her to face “criminal charges for incitement”. Others said, “I didn't read it as that but as tongue-in-cheek highlighting [Owen Jones'] sanctimony over this”, “she didn't label him a Nazi … she highlighted a clear hypocrisy”, she was “pointing out the hypocrisy of Owen's position”, “If it's wrong to throw an egg at someone you agree with its wrong to do it to someone you disagree with – simple.” These are just samples of what was itself a selection, but they give the flavour of the two kinds of response which the GAT provoked.
One of those who responded to the GAT in a way that tended towards the first of these two lines was the defendant. At 20:10 on 3 March 2019 she posted a reply to the Good Advice Tweet (“the Reply Tweet”) in these terms:
“You are publicly encouraging violent attacks against a man who is already a target for death threats. Please think for a second about what a dangerous and unhealthy role you are now choosing to play in public life.”
Because it was a reply, the Reply Tweet made the text of the GAT available to its readers. The claimant did not respond. At trial she said she did not recall whether she had seen it. She has never brought a claim in libel in respect of the Reply Tweet.
Later still, at 21.03, the defendant posted the Defendant's Tweet, which was in these terms:
“Today Jeremy Corbyn went to his local mosque for Visit My Mosque Day, and was attacked by a Brexiteer.
Rachel Riley tweets that Corbyn deserves to be violently attacked because he is a Nazi.
This woman is as dangerous as she is stupid. Nobody should engage with her. Ever.”
The Defendant's Tweet did not reply to or quote the GAT or include a screenshot of it nor did it otherwise provide the reader with access to the text of the GAT or any information about its content other than this account of what it said.
On 4 March 2019, the claimant and defendant staked out their positions on Twitter. At 00.17, the claimant responded by quote tweeting the Defendant's Tweet, referring to it as an “appalling distortion of the truth” and thanking all those who had “checked the facts of this to call [it] out”. The claimant used raised eyebrow and head in hands emojis to express dismay at “those calling for my arrest, urgh”. At 07:38 the defendant replied to this, addressing the claimant in these terms: “Your tweet said ‘good idea’ to the words ‘if you don't want to get egged, don't be a Nazi’. The obvious interpretation of that is that you're saying Corbyn is a Nazi and it's a good idea to punch him. If you meant something different, please clarify it?” The claimant did not respond on Twitter.
The claimant sued for libel, complaining of the Defendant's Tweet.
As is now standard practice, there was a trial of preliminary issues at which the court determined the natural and ordinary meaning of the words, to what extent the words were a statement of fact or an expression of opinion, and to what extent they were defamatory of the claimant. Nicklin J applied the well-established and uncontroversial principles he had summarised in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB), [2020] 4 WLR 25 [11]–[16]. An important aspect of these for present purposes is the “single meaning rule” explained in Koutsogiannis [11]:-
“The Court's task is to determine the single natural and ordinary meaning of the words complained of, which is the meaning that the hypothetical reasonable reader would understand the words bear. It is well recognised that there is an artificiality in this process because individual readers may understand words in different ways: Slim v Daily Telegraph Ltd [1968] 2 QB 157, 173D–E, per Lord Diplock.”
The process of identifying the single natural and ordinary meaning of a statement is an objective one. The intention of the publisher is irrelevant and no evidence is admissible other than the publication complained of itself: Koutsogiannis [12(ii), (x)].
Applying these principles Nicklin J determined that:
“(i) The natural and ordinary meaning of the [Defendant's Tweet] is:
(1) Jeremy Corbyn had been attacked when he visited a mosque.
(2) The Claimant had publicly stated in a tweet that he deserved to be violently attacked.
(3) By so doing, the Claimant has shown herself to be a dangerous and stupid person who risked inciting unlawful violence. People should not engage with her.
(ii) Paragraphs (1) and (2) are statements of fact. Paragraph (3) is an expression of opinion.
(iii) Paragraphs (2) and (3) are defamatory at common law.”
Meanings (2) and (3) have come to be known as “the Factual Allegation” and “the Opinion” respectively.
At the trial of the action the defendant denied that the publication of those imputations met the threshold requirement imposed by s 1 of the 2013 Act, that they had caused or were likely to cause serious harm to the claimant's reputation. On that question, evidence of actual responses was relevant. Having examined the evidence Nicklin J found for the claimant on that issue. In the alternative, the defendant asserted that the Factual Allegation was true, that the Opinion was honest opinion, and that the Defendant's Tweet as a whole was a statement on a matter of public interest, the publication of which she reasonably believed to be in the public interest. The onus lay on her to establish these defences. Nicklin J accepted that the Defendant's Tweet was honestly published on a matter of public interest but found that none of the statutory defences had been established. He therefore entered judgment for the claimant.
Damages were reduced by two important findings. The first was that the Good Advice Tweet was ambiguous, and the claimant was aware of this, so that posting it was “provocative, even mischievous” conduct which posed an obvious risk of misunderstanding and hostile reaction. This was held to be conduct that mitigated the damage, or “directly relevant background context” which had the same effect in accordance with Burstein v Times Newspapers Ltd [2000] EWCA Civ 338, [2001] 1 WLR 579, or both. Secondly, the Judge held that this was “not a case in which the damages award has an important role to play in vindicating the claimant's reputation.” That was because the judgment and reporting of it would...
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