Is there a thin line between freedom of speech and getting into trouble for defamation?

On 20 December 2021, television presenter Rachel Riley was awarded £10,000 in damages after suing a former senior aide to Jeremy Corbyn for libel. Ms Riley brought a libel case against Mr Corbyn’s former head of complaints, Ms Laura Murray, at the High Court, over a social media post in 2019. For context, libel refers to defamatory material written or broadcasted against an individual, while slander statements are made orally.

The dispute began when Mr Corbyn was hit with an egg during his visit to Finsbury Park Mosque in March 2019. Ms Riley initially posted a screenshot of a January 2019 tweet by the Guardian columnist Owen Jones about an attack on the former British National party leader Nick Griffin. In his tweet, Mr Jones stated: “I think sound life advice is, if you don’t want eggs thrown at you, don’t be a Nazi.” Whilst posting a screenshot of Mr Jones’ tweet, Ms Riley added “good advice” (“the Good Advice Tweet”), with emojis of a red rose and an egg (red rose being the emblem for the Labour Party).

In response to Ms Riley’s tweet, Ms Murray tweeted: “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.”

Following Ms Murray’s tweet, Ms Riley took legal action against Ms Murray and in May 2021, the case proceeded to trial at the High Court.

Legal points relied upon by the parties

Ms Riley’s case relied on the fundamental point gripping defamation cases i.e Ms Murray’s tweet caused serious harm to her reputation. In relation to this point, Ms Riley’s counsel relied upon three points to establish his client’s case:

1. the seriousness of the defamatory imputations;
2. the scale of publication; and
3. actual evidence of harm to Ms Riley’s reputation.

Ms Murray’s defence rested on the fact that what she had tweeted was true and reflected her honest opinion.

What was the judgment?

Mr Justice Nicklin’s overall view was that Ms Murray’s tweet was indeed defamatory.

In his judgment, Mr Justice Nicklin considered the following points:

• If Ms Riley had successfully demonstrated that publication of Ms Murray’s tweet has caused or is likely to cause serious harm to Ms Riley’s reputation. On this point, Mr Justice Nicklin held that Ms Murray’s tweet had caused serious harm to Ms Riley’s reputation. Whilst coming to this conclusion, Mr Justice Nicklin referred to the 94 responses, 661 re-Tweets and 1,764 likes Ms Murray’s negative tweet had received. Mr Justice stated that although not in the league of mainstream media publications, the retweets are evidence of significant publication, and it is a reasonably safe assumption that most of those who re-tweet or like a tweet agree with its message.
• If Ms Murray had demonstrated the factual allegations against Ms Riley were substantially true i.e the defence of truth. Mr Justice Nicklin found that in this instance, the defence of truth failed. What Ms Murray stated, as a matter of fact in her tweet, was not substantially true; it was at best half the story which could be interpretated in at least two ways. Mr Justice Nicklin further elaborated that if Ms Murray had stated Ms Riley had posted a tweet which could suggest that Jeremy Corbyn deserved to be violently attacked then Ms Murray may well have had a viable defence of truth (or honest opinion). However, Ms Murray took upon herself the burden of describing, as a matter of fact, what Ms Riley had said and in doing so, removed any elements of ambiguity. The Judge went on to say Ms Murray made matters worse by adding Ms Riley had stated that Mr Corbyn “deserved to be violently attacked” and consequently, put forward the very worst construction of the Good Advice Tweet.
• If Ms Murray had demonstrated her opinion was an honest opinion. Mr Justice Nicklin found that Ms Murray’s defence of honest opinion failed. Substantially, this was because Ms Murray had failed to establish the true facts behind her opinion. Although the defence of honest opinion provides a degree of latitude in the proof of facts upon which an honest person could have held the expressed opinion, it does not provide an escape route for defendants who have expressed an opinion on stated facts they cannot prove to be true.
• Finally, if Ms Murray had demonstrated her tweet was a publication on a matter of public interest. The defence of publication on a matter of public interest also failed. Although the Court was satisfied Ms Murray’s tweet was a matter of public interest and Ms Murray had believed that publishing the tweet was also in the public interest, ultimately, Ms Murray had not demonstrated her belief was reasonable. Mr Justice Nicklin was also of the opinion that Ms Murray misrepresented what Ms Riley had tweeted in her Good Advice Tweet. The Judge did not accept that the decision not to include the Good Advice Tweet, or accurately describe what it said, was an exercise in editorial judgment which could excuse this critical failure. The Judge held that as the reactions to the Good Advice Tweet demonstrate, some readers might nevertheless have shared Ms Murray’s view, but critically, others would not have done.

Notwithstanding the above, the Judge awarded Ms Riley £10,000 in damages because he found there was an element of provocation in the Good Advice Tweet.

So, what can we learn from this episode?

Interestingly, Mr Justice Nicklin also rejected Ms Murray’s submission that rejection of her defences would be an unjustifiable interference with her right of freedom of expression. So, what does this decision mean in practical terms for entities and individuals to avoid a defamation suit? Below are a few tips:

• Avoid making statements which cannot be proven. In other words, at least make statements or produce opinions which can be backed up with evidence to help establish the facts.
• If you are unsure of the validity of a statement you are making, explicitly state this to create an air of ambiguity, which will allow readers to come to their own interpretations.
• Consider how ordinary lay readers may perceive a statement and the impact a public statement may have on the person/entity you are making the inflammatory statement against.
• Consider whether it is absolutely necessary to make potential inflammatory statements. Often it is better to hold your tongue rather than make a statement in haste which you will only later come to regret.
• Always consider the backlash which will come from an inflammatory statement!

JMW have a dedicated team who can provide legal advice and assist with any defamation matters. Please contact IP@jmw.couk should you require any advice in relation to defamation or IP matters.