Dear Colleagues;

Those interesting in both defamation and, I think, how superior courts deal with “social facts”, might be interested in the UK Supreme Court decision in Stocker v Stocker [2019] UKSC 17 (3 April 2019)

http://www.bailii.org/uk/cases/UKSC/2019/17.html . In a Facebook post a woman said that her former husband had “tried to strangle me”. In an action for defamation brought by Mr Stocker, a crucial question was how to determine the meaning of this phrase. The trial judge said, using a dictionary definition, that the word “strangle” had to mean either (1) to kill by compression of the throat, or (2) to compress the throat. The word “try” became significant. Since the event of compressing the throat had actually occurred, Mrs Stocker cannot have meant he “tried” to do that. Hence her meaning must have been he “tried” to kill her, which was a very serious meaning and which the judge was not satisfied could be justified.

The Supreme Court (Lord Kerr, with whom the others agreed) said that the trial judge had made an error of law by assuming that the dictionary definition must be applied to a causal Facebook conversation (not to mention the nuances of “try”- insert Yoda meme here). Since this was an error of law the SC could make its own mind up about the meaning, which was the more common sense one that “tried to strangle” here meant “compressed my throat”. This was true and the defamation claim failed.

The “social fact” analysis consists of the court commenting on how people use social media- see paras [41]-[46], mostly quoting findings from lower court judges. As a (sadly) frequent user of both Facebook and Twitter I think myself that the court may have been a bit too quick to equate how people read Twitter with how people use Facebook (those who do- some are telling me that Facebook use is shrinking recently). I don’t disagree with the SC’s ruling, it seems sensible. But it does raise the perennial issues as to how these matters ought to be decided.

Regards

Neil

NEIL FOSTER

Associate Professor, Newcastle Law School

Faculty of Business and Law

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