Day v Chivers

In determining the meaning of social-media publications, the court must identify the single natural and ordinary meaning conveyed to the hypothetical reasonable reader. The test is objective: the publisher’s intention and any label attached to the words are irrelevant. Facebook posts should be read once, as a whole, in their conversational context, without over-elaborate textual analysis.

A publication may contain both allegations of fact and expressions of opinion. A personal perspective or publication on Facebook does not convert factual allegations into opinion. Meaning is defamatory at common law where it has a substantial tendency adversely to affect the claimant’s reputation. The statutory serious-harm threshold and available defences remain separate issues.

The claimant brought a libel action concerning four Facebook publications by the defendant during the breakdown of a laundry business relationship involving the claimant and the defendant’s husband. The trial was adjourned after submissions on preliminary issues so that the court could determine the publications’ natural and ordinary meanings, whether they conveyed fact or opinion, and whether those meanings were defamatory at common law.

The court also considered alleged innuendo meanings based on readers having seen other publications. The ruling was intended to clarify the issues and assist the parties in deciding how the litigation should proceed.

1. Approach to meaning. The court applied the objective test stated in Koutsogiannis v Random House Group [2020] 4 WLR 25. The task was to determine the single natural and ordinary meaning which the hypothetical reasonable reader would take from the words. The posts had to be read once, as a whole, in context. The reader was neither naïve nor suspicious, and the court avoided literalism, strained interpretation and over-elaborate analysis.
2. Social-media context. Consistently with Vardy v Rooney [2020] EWC 3156 (QB) and Stocker v Stocker [2019] 2 WLR 1033, the court treated Facebook posts as conversational and fast-moving. Their essential message was likely to be absorbed impressionistically.
3. Fact and opinion. The distinction was also objective and depended on how the words would strike the ordinary reasonable reader. The court had to consider substance, subject matter and context. The publications contained factual allegations about conduct, together with opinions about the claimant’s character and conduct. The fact that the posts expressed the defendant’s personal perspective did not turn factual allegations into opinion.
4. Defamatory tendency. Each natural and ordinary meaning was intrinsically defamatory at common law because it substantially tended to adversely affect the claimant’s reputation. The meanings alleged serious, unethical or unlawful conduct and would cause ordinary readers to think substantially worse of him.
5. Innuendo and statutory issues. Reading earlier posts could reinforce or add contextual implications, but did not materially alter the natural and ordinary meaning of the third publication. The fourth publication conveyed allegations at different levels of factual imputation, including reasonable grounds to suspect civil wrongdoing and grounds to investigate possible criminal conduct. If the proceedings continued, the claimant would still have to prove serious harm under section 1 of the Defamation Act 2013. The defendant would bear the burden of establishing truth under section 2, or justification of opinion under section 3, or another defence.