“I do not accept [Mr Stocker’s] account that he merely put one hand over [Mrs Stocker’s] mouth while he was standing on the stool or chair. His hand would have been at his thigh level. He could not have exerted more than momentary pressure on her mouth, from which she could instantly have escaped. Nor could he have left the reddening marks on her neck or throat which I am satisfied were seen by the police. I do not, however, believe that he threatened to kill her or did anything with his hands with that intention. I do not believe that he was capable even in temper of attempted murder. The most likely explanation about what happened is that he did in temper attempt to silence her forcibly by placing one hand on her mouth and the other on her upper neck under her chin to hold her head still. His intention was to silence, not to kill.”
“If the defendant had said ‘he strangled me’, the ordinary reader would have understood her to have used the word in the second sense for the obvious reason that she was still alive. But the two Facebook comments cannot have been understood to refer to ‘trying’ to strangle her in that sense because, as she said, the police had found handprints on her neck. These could only have been caused by the painful constriction of her neck or throat. If understood in that sense, she could not have been taken to have said that the defendant had tried to strangle her because he had succeeded. The ordinary reader would have understood that the defendant had attempted to kill her by external compression of her throat or neck with his hands and/or fingers.”
“That understanding [that her husband had tried to kill Mrs Stocker] would have informed the ordinary reader about the meaning of the remaining comments. They were that he had been arrested on at least two other occasions for ‘gun issues’ and for breach of a non-molestation order and possibly on a third for ‘threats’. In addition, he would have understood her to assert that the police believed that he had broken the terms of the non-molestation order; in other words, that there was a basis beyond mere suspicion for doing so.”
“I agree that in principle the statement that a person has been arrested is not necessarily defamatory. But these statements, taken together, go well beyond that. They justify the claimant’s pleaded case that the reasonable inference to draw from the statement was that the defendant was dangerous, at least to any woman with whom he lived or had lived, that he was a man who tried to kill on one occasion, had been arrested for an offence involving firearms on another, and had given the police reason to believe that he had broken a non-molestation order made against him. To describe him thus was defamatory.”
“The defendant has proved some justification for the words which she used in the Facebook postings. The claimant did commit an offence against her on23 March 2003 , at least common assault. He was arrested three times. There were ‘gun issues’. He had made threats, though not of immediate violence against her. But she has not met the sting of the postings that the claimant was a dangerous man. The impression given by the postings to the ordinary reader was a significant and distorting overstatement of what had in fact occurred.”
“The use of dictionaries does not form part of the process of determining the natural and ordinary meaning of words, because what matters is the impression conveyed by the words to the ordinary reader when they are read, and it is this that the judge must identify. As it happened however no harm was done in this case. The judge told counsel during the course of submissions that he had looked at the OED definitions and what they said, so the parties had the opportunity to address him about it; the judge, as he then said, merely used the dictionary definitions as a check, and no more; those definitions were in substance the rival ones contended for by the parties, and in the event, the judge’s ultimate reasoning, not dependent on dictionaries, was sound.”
“The judge’s reference to the respondent’s dangerousness was merely his overall characterisation of the impression the [comments made by Mrs Stocker on Ms Bligh’s Facebook wall] conveyed, in the light of the discrete meanings he had found them to bear (the respondent had tried to kill etc). This was not a freestanding meaning therefore detached from the meanings complained of, nor was this a characterisation which founds an appeal that the judge was wrong; indeed to my mind, in the light of the meanings found by the judge, this overall characterisation of what was alleged was self-evidently correct.” (Emphasis added)
“In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.”
“I can see why an issue in relation to section 5 might arise for consideration if the judge was wrong to conclude that the comments alleged the respondent had tried to kill the appellant by strangling her. In my view however, the failure of the principal argument on meaning deprives the argument on section 5 of any force that it might have had. The judge found in short that there was a real and substantial difference between the allegations made and those proved; and in my view he was entitled to reach that view on the evidence he heard. Having carefully appraised the evidence of justification and dealt with the essential points relating to that defence, the judge put the matter in this way. Though the appellant had proved some justification for the words she used, the allegations made in the comments were a significant and distorting overstatement of what had in fact occurred. His views were similarly expressed during the course of submissions. It is true that the judge found as a fact that during the course of an argument, the respondent had committed common assault at least, by placing his hand over the appellant’s mouth and putting his hand under her chin, to stop her speaking. However there is a material difference in gravity between such conduct, however unpleasant it may be, and an attempt to kill by strangulation; and it was plainly open to the judge to find, as he did, that what the appellant had proved in this and other respects, fell short by some measure of establishing a successful defence of justification, by reference to section 5 or otherwise.”
“(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve, but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking, but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other nondefamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any ‘bane and antidote’ taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation …’ (see Eady J in Gillick v Brook Advisory Centres approved by this court[2001] EWCA Civ 1263 at para 7 and Gatley on Libel and Slander (10th ed), para 30.6). (8) It follows that ‘it is not enough to say that by some person or another the words might be understood in a defamatory sense.’ Neville v Fine Arts Co[1897] AC 68 per Lord Halsbury LC at 73.”
“To this I would only add that the words ‘should not select one bad meaning where other non-defamatory meanings are available’ are apt to be misleading without fuller explanation. They obviously do not mean in a case such as this one, where it is open to a defendant to contend either on a capability application or indeed at trial that the words complained of are not defamatory of the claimant, that the tribunal adjudicating on the question must then select the non-defamatory meaning for which the defendant contends. Instead, those words are ‘part of the description of the hypothetical reasonable reader, rather than (as) a prescription of how such a reader should attribute meanings to words complained of as defamatory’: see McAlpine v Bercow[2013] EWHC 1342 (QB) , paras 63 to 66.”
“The most significant lessons to be drawn from the authorities as applied to a case of this kind seem to be the rather obvious ones, that this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter.”
“It is very important when assessing the meaning of a Tweet not to be over-analytical. … Largely, the meaning that an ordinary reasonable reader will receive from a Tweet is likely to be more impressionistic than, say, from a newspaper article which, simply in terms of the amount of time that it takes to read, allows for at least some element of reflection and consideration. The essential message that is being conveyed by a Tweet is likely to be absorbed quickly by the reader.”
“13. It is necessary to have well in mind the nature of bulletin board communications, which are a relatively recent development. This is central to a proper consideration of all the matters now before the court. 14. … Particular characteristics which I should have in mind are that they are read by relatively few people, most of whom will share an interest in the subject-matter; they are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or ‘give and take’. … 16. People do not often take a ‘thread’ and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it.”
“… [Counsel for the appellant] submitted that the relevant test on an appeal on meaning was whether the decision of the lower court was wrong: seeCPR rule 52.11 (3)(a), nowCPR rule 52.21 (3)(a). In contrast, [counsel for the respondent] submitted that this court should only reject the meaning found by the judge if it was ‘clear’ that some other meaning applied. A passage in Duncan & Neill … at para 33.03 describes both arguments in relation to the determination of meaning (a different approach is adopted in a determination made under paragraph 4 ofCPR Practice Direction 53 that a statement is capable or incapable of bearing a particular meaning). I have added the letters A and B to para 33.03 so as to distinguish the two approaches: ‘[A] A determination of the actual meaning of a statement is a determination of fact that an appeal court is bound to overturn if the judge’s determination was ‘wrong’. Since determination of meaning is often based on the consideration of a single document, an appellate court, it might be said, is as well placed as the first instance judge to decide the issue and should simply substitute its own view if it disagrees with the judge.’ ‘[B] On the other hand, it might be said, determination of meaning is nevertheless an exercise that involves the evaluation and weighing of various parts of a statement, such that an appeal court should normally accord a degree of deference to the first instance judge and interfere only when ‘quite satisfied’ that a judge’s determination of meaning was wrong and that some other meaning clearly applied. It appears that this more deferential approach is the one likely to be adopted.’”
“The Court of Appeal should be slow to differ from any conclusion of fact reached by a trial judge. Plainly this principle is less compelling where his conclusion is not based on his assessment of the reliability of witnesses or on the substance of their oral evidence and where the material before the appellate court is exactly the same as was before him. But even so we should not disturb his finding unless we are quite satisfied he was wrong.” (Emphasis added)
“[Counsel for the claimants] relied heavily on a supposed principle that the meaning of words was a jury question (and thus a question of fact) and that the judge was the best person qualified to reach the right conclusion which should not be ‘second guessed’ by this court.”
“As to the test that this court should apply, although this court has the same documents as were available to the judge, and the meaning depends on documents, we apply the dictum of Sir Thomas Bingham MR, [in Skuse]. The determination of meaning does not depend solely on the documents, but on an evaluation of those words in their context. In those circumstances, we consider that we should not depart from the judge’s meaning unless it is clear that some other meaning applies.” (Emphasis added)
“19. There is, of course, considerable force in this argument. On the other hand, imputations of criminal conduct are extremely serious and, if an appellate court thinks that an article just does not bear that imputation, it should say so. It is an important aspect of the law of libel that it should be open to a defendant to justify a lesser defamatory meaning than that alleged by a claimant if that is the right meaning to be given to the article.”
“It seems to me that the better approach is for this court to adopt a position somewhere between Duncan & Neill’s propositions A and B. It should proceed cautiously before substituting its own views on meaning and only do so when satisfied that the judge is wrong, not least because meaning is very often a matter of impression, because experienced defamation judges are well practised at applying the relevant tests for determining meaning and because it is plainly undesirable for the Court of Appeal to approach the issue on appeal simply on the basis that they might have formed a different view from the judge.”
“3. The reasons justifying that approach are not limited to the fact, emphasised in Clarke’s case and Thomas v Thomas, that the trial judge is in a privileged position to assess the credibility of witnesses’ evidence. Other relevant considerations were explained by the United States Supreme Court in Anderson v City of Bessemer (1985) 470 US 564, 574- 575: ‘The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much. As the court has stated in a different context, the trial on the merits should be ‘the ‘main event’ … rather than a ‘try-out on the road’’ … For these reasons, review of factual findings under the clearly erroneous standard - with its deference to the trier of fact - is the rule, not the exception.’ … 4. Furthermore, as was stated in observations adopted by the majority of the Canadian Supreme Court in Housen v Nikolaisen[2002] 2 SCR 235 , para 14: ‘The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged.’”
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