Saying sorry quickly is the safest bet to protect yourself from Twibel, writes Jennifer Agate
Brexit. Brangelina. We inhabit the era of the portmanteau noun. Now meet 'Twibel' – or libel in a Twitter context. It’s already an intangible area of law. In short, when should you simply brush off Twitter criticism and when should you instruct lawyers?
Some of that uncertainty was clarified last week in the libel action brought by Jack Monroe against Katie Hopkins – the most high profile social media case since Sally Bercow's ‘innocent face’ libel of Lord McAlpine.
The problem arose from two tweets posted by Katie Hopkins in May 2015 in the wake of anti-austerity demonstrations in London, in which the Memorial to the Women of WWII had been vandalised. In the first tweet, mistaking Jack Monroe for another twitter user, @PennyRed, who had expressed support for the protestors, Hopkins tweeted ‘@MsJackMonroe scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom. Grandma got any more medals?’
After three tweets from Ms Monroe and clearly realising her mistake, Hopkins deleted the first tweet, but rather than apologise, posted a second tweet, saying ‘Can someone explain to me – in 10 words or less – the difference between irritant @PennyRed and social anthrax @Msnd social anthrax @JackMonroe"JackMonroe’.Two weeks and a solicitor's letter later, Hopkins posted a further tweet acknowledging the mistake, but still failing to apologise.
Monroe, who by this time had received what she described as a ‘torrent of abuse’ by other social media users, issued proceedings claiming that the two tweets had defamed her and caused her serious harm (the threshold for defamation actions since the Defamation Act 2013). Hopkins defended the claim to trial, contending that the tweets were not defamatory and not capable of causing serious harm.
Unfortunately for Hopkins, the judge agreed with Monroe, finding that readers would have taken both tweets to mean that Monroe condoned and approved of the vandalism of a war memorial, a meaning which was capable of being defamatory. While concluding that Monroe may not have proved that her reputation had suffered ‘gravely’, he ruled that she had suffered harm ‘of a kind that would be serious for her’. The ruling would appear to suggest that the bar for victims of social media attacks might be slightly lower than previously thought.
Hopkins was ordered to pay £24,000 in damages and to make an interim payment of £107,000 towards the claimant's costs bill, thought to total more than £300,000. The judge also took the opportunity to note that the case was one which need never have gone to trial.
The astonishing aspect of the case is that just 54 minutes after the original tweet had been posted, before lawyers had even been instructed, Monroe had made an open offer, on Twitter, to accept a public apology and donation of £5,000 to charity to settle the matter. A fraction of the £24,000 damages awarded at trial (before we even consider the eye watering costs bill).
The message to those posting on Twitter is simple. If you make a mistake, say sorry. Quickly.
Jennifer Agate is a senior associate at Foot Anstey LLP