Riley v Sivier

A defence of substantial truth must plead sufficient and particularised primary facts capable of proving the defamatory meaning. In a claim concerning online conduct, a selective collection of tweets cannot establish a campaign without a sustainable account of the complete relevant exchange and its context. A public figure is not responsible for third-party abuse merely because the abusers follow or support that person, and silence or failure to condemn others is not, without more, deliberate support or encouragement. Where a factual allegation is unsustainable, closely connected honest opinion and public-interest defences may also fail. Strike-out remains appropriate where the defence has no realistic prospect of success, although the court should avoid deciding factual issues requiring a trial.

Rachel Riley sued Michael Sivier over an article alleging that she had engaged in, supported and encouraged an online campaign of abuse and harassment against a 16-year-old girl, and had thereby incited death threats. At a preliminary-issues trial, Nicklin J held that the allegation of conduct was fact and that the accompanying descriptions of Riley as a serial abuser and as hypocritical, reckless, irresponsible and obscene were opinions.

Sivier pleaded substantial truth, honest opinion and publication on a matter of public interest under sections 2 to 4 of the Defamation Act 2013. Riley applied to strike out the defence under rule 3.4 of the Civil Procedure Rules 1998. The central issue was whether the pleaded tweets, alleged omissions and third-party conduct disclosed a defence with a realistic prospect of success.

1. The strike-out application succeeded in relation to the substantive defences under sections 2 to 4 of the Defamation Act 2013. The proposed amendments to those parts of the defence were also refused.

2. A defence of substantial truth must plead primary facts with sufficient particularity to show how the defamatory meaning can be proved. The pleaded case must provide a succinct and clear account of the essential facts and must not shift the burden to the claimant. Applying Ashcroft v Foley and the Musa King principles, a defence based on a course of online conduct must present a sustainable and properly contextualised account rather than a collage of selected extracts.

3. Riley’s direct exchange with Rose was, viewed objectively and in context, a measured and civil response to a direct challenge. Her later general tweets were principally a response to an emerging narrative that she had bullied Rose and included steps discouraging hostility towards Rose. They could not realistically establish a campaign of abuse or harassment.

4. Third-party tweets did not establish Riley’s responsibility. Followership alone could not show support or encouragement. Nor could alleged omissions, including failure to restrain or condemn others, amount to deliberate and calculated support without pleaded facts showing influence, causation and the significance of the omissions. A speculative expectation that disclosure or cross-examination might supply those facts was impermissible.

5. The court applied the realistic-prospect test without conducting a mini-trial, but considered the available Twitter material where no fuller factual investigation could affect its construction. The pleading disclosed no reasonable grounds for defending the factual allegation. That also removed the factual basis for the connected honest-opinion and public-interest defences.

6. The parts of the defence concerning publication, serious harm and remedy were not struck out, since those matters remained for Riley to establish and had not been fully argued.

The judgment was a first-instance decision on applications to strike out and amend a defence. It proceeded on the meaning and findings determined by Nicklin J at the preliminary-issues trial, but no citation for that decision is stated in the judgment.