Richard (Raziel) Davidoff & Ors v Nicholas Hargrave

Determining whether a hyperlink forms part of a publication, and whether words refer to an unnamed claimant, is an objective exercise based on the publication and its context. Evidence about the characteristics of a defendant’s social-media followers is inadmissible when determining whether the hypothetical reasonable reader would follow a hyperlink.

A reference innuendo must identify the extrinsic facts and, ordinarily, the publishees who knew them, or plead the factual basis for an inference that readers possessed that knowledge. Defective pleadings should not be struck out where amendment may cure the defect and the claim cannot be said to be bound to fail.

The claimants brought defamation proceedings concerning a quote-tweet of 7 May 2022 and a post published beneath a newspaper article. They alleged that hyperlinks incorporated material identifying all four claimants and relied on reference innuendos concerning the unnamed claimants.

The defendant applied to strike out the reference-innuendo pleadings and sought determination of preliminary issues concerning reference, meaning, defamatory tendency, and fact or opinion. The court first determined whether evidence about the defendant’s Twitter followers could be adduced on the question whether a reasonable reader would click the hyperlink. It then considered whether paragraphs 11, 8.1 and 8.2 of the Amended Particulars of Claim disclosed properly pleaded causes of action.

1. Point of law. The parties were not permitted to adduce evidence about the defendant’s followers when determining whether the hypothetical reasonable reader would click the hyperlink in the 7 May 2022 Tweet. The hypothetical reader is an objective construct, representative of users of the relevant medium. The question must be determined from the publication and its context, without evidence beyond the publication complained of. The authorities did not establish a special evidential rule for Twitter.
2. Whether a reasonable reader would follow a hyperlink depends on context. Relevant considerations may include familiarity with the subject matter, interest in the article, directions to read linked material, and whether the reader needs the material to understand the publication. There is no hard and fast rule that an embedded hyperlink is treated as read.
3. Reference innuendo. A claimant relying on extrinsic facts must plead and prove those facts. The pleading must ordinarily identify the publishees who knew them, or plead the factual basis for an inference that some readers possessed the relevant knowledge. The facts must generally have been known when the publication was read; separate publications cannot ordinarily be aggregated without a sufficient nexus.
4. Paragraph 11, concerning the 7 May 2022 Tweet, and paragraphs 8.1 and 8.2, concerning the 11 May 2022 Post, were defective. The court rejected the contention that Falter created a new “hybrid innuendo” route avoiding the established pleading requirements.
5. The court declined to strike out paragraphs 8.1 and 8.2 because the pleaded claims were not shown to be bound to fail and the defects might be cured by amendment. The claimants were given an opportunity to amend paragraph 11 and paragraphs 8.1 and 8.2. Consequential directions and the preliminary issues were left for later determination.