Stocker v Stocker

In defamation, meaning is determined by the impression conveyed to the ordinary reader, reading the words in their context. Dictionaries may be used as a check, but they do not replace that assessment. A trial judge may identify a single meaning within the relevant area of contention rather than adopt either party’s formulation.

Comments posted on a Facebook wall and instantly accessible to the account holder’s friends are an original publication to each reader, not a republication. The publisher’s failure to think specifically about third-party access does not remove responsibility or create a general knowledge or negligence requirement. The observations in Terluk v Berezovsky, [2011] EWCA Civ 1534, on republication liability were obiter and did not establish a wider test.

Ronald Terance Stocker appealed from a libel judgment in favour of Nicola Stocker arising from comments posted on Facebook. Mitting J found the comments defamatory, rejected the abuse-of-process, consent and justification defences, and held that they had been published to three readers. The judge would have awarded £5,000 in damages, although damages were waived; a separate email claim was struck out on Jameel principles.

On appeal from [2016] EWHC 474 (QB), the appellant challenged the meaning attributed to the comments and the conclusion that the appellant was legally responsible for their publication. The central issues were whether the comments conveyed an allegation of attempted killing by strangulation and whether Facebook posting involved republication requiring a knowledge-based, negligence-based or foreseeability test.

The Court of Appeal, with Sharp LJ giving the leading judgment and Sir John Laws and McFarlane LJ agreeing, unanimously dismissed the appeal.

1. Meaning. The natural and ordinary meaning of defamatory words is the impression conveyed to the ordinary reader in the relevant context. The judge properly applied the principles in Jeynes v News Magazines Limited [2008] EWCA Civ 130 and Rufus v Elliott [2015] EWCA Civ 121. Dictionaries were not part of the process of determining meaning, but could be used as a check. The word “tried”, read with the surrounding allegations, conveyed an unsuccessful attempt to kill by compressing the neck, rather than merely gripping the neck. The reference to dangerousness was an overall characterisation of the meanings found, not a freestanding meaning. The appellate court was not entitled to retry the issue where the judge had applied the correct principles and reached a conclusion open to him.
2. Justification. Section 5 of the Defamation Act 1952 did not assist. There was a material difference in gravity between the allegation of attempted killing by strangulation and the matters proved, including common assault. The proved matters therefore fell substantially short of establishing justification under section 5.
3. Publication. A comment posted on a Facebook wall and instantly accessible to the account holder’s friends was an original publication to each third party who read it. It was analogous to placing a notice on an electronic notice board. No intervening act or repetition by another person was required. The fact that the publisher did not specifically consider third-party access did not remove responsibility, particularly where the publisher knew the platform was semi-public. Theaker v Richardson and Huth v Huth concerned addressed letters and materially different circumstances.
4. Republication. Publication and republication were distinct. Terluk was a republication case, and the observations in the last part of paragraph 28 on the possible test for republication were obiter and had not been reached after full argument. They did not establish a general knowledge, intention or foreseeability test for original publication. The complaint about inadequate reasons also failed, particularly as no request for further reasons or clarification had been made in accordance with English v Emery Reimbold.

• Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the lower court’s findings on meaning, justification and publication in [2018] EWCA Civ 170.
• High Court of Justice: Mitting J found the Facebook comments defamatory, rejected the principal defences and held that they had been published to three readers in [2016] EWHC 474 (QB). Earlier interim applications were addressed in [2014] EWHC 2402 (QB) and [2015] EWHC 1634 (QB).