Tricky Tweets: Defamation

The recent case of Hayden v Family Education Trust [2023] EWHC 950 (KB) has served as a reminder that recipients of negative comments online should consider the whole effect of such comments, before commencing proceedings for defamation.

Facts

The defendant stated in a “tweet” that the claimant was a “delusional trans activist”. In the same tweet the defendant accused the claimant of harassing people but it was then deleted, 40 minutes after it had first been posted.

The defendant’s Twitter account had 2,399 followers at the time of the tweet, which had also tagged two others at the time of posting on line. The tweet did not name the claimant. One individual replied to the post, disagreeing with the content of the tweet, resulting in it being deleted.

The defendant applied for summary judgment on the basis that claimant could not satisfy the requirement of serious harm having been caused by the tweet, where it was only published for 40 minutes and it was not clear that it referred to the claimant. The claimant submitted that her claim should be determined at trial on the basis that the allegations were serious and implied that she was guilty of harassment. The claimant also asserted that as the defendant was a charity, this would sway readers of the tweet to believe the allegations. She also argued that as the tweet had tagged in another two accounts at the time of posting, it was possible that the tweet had been seen by 45,000 users before being deleted.

Decision

The court made it clear that in assessing whether a tweet has caused serious harm, it should be concerned with the impact of its publication, rather than the nature of the statements contained in the tweet. The court noted that the only real evidence of damage to reputation was from one twitter user, who challenged the original tweet and following which the tweet was removed.

The court also held that it was highly unlikely that 45,000 users had seen the tweet, given that it had been deleted shortly after posting and that the actual number of people that read it would’ve had to have been using twitter pretty much at the time of the tweet being posted. The claimant had provided no evidence that tagging somebody into a tweet, results in the tweet being forward to all of that person’s followers. The evidence before the court was that the tweet had been liked twice; retweeted three times; and had only been available for 40 minutes. The court took the view that it was fanciful to think that the case on serious harm to reputation was going to improve by the time of a trial. Therefore, the court granted summary judgment in favour of the defendant.

Comments

In this age of social media it is very easy for people to post negative comments about others online. Just because such a comment is negative and potentially defamatory in nature, doesn’t mean that the recipient of such a comment will be successful in a claim for defamation. All of the facts need to be scrutinised to determine whether the recipient has suffered serious harm as a result of the comments. With this decision the court reminded everyone of the serious harm requirement and sent a message that a claim based on fleeting comments made on line is likely to fail, unless it is proven that a substantial number of users actually read the comments.

The contents of this post do not constitute legal advice and are provided for general information purposes only.