Why the Hopkins libel case is a wake up call for all on social media
The Katy Hopkins Jack Monroe libel case has opened up a minefield.
Just one of the consequences of the case is that it will lead to many more. There are people who have read about it who will, right now, be scouring their newsfeeds to see if they can find material they could use to sue someone.
Sadly Northern Ireland social media users will be at higher risk because of the stricter libel laws here.
All organisations need to wake up to this reality. Charities, for example. are not just charities any longer. All those that have social media platforms (which is pretty much all of them) are publishers as well.
Publishing law is complex and it is considered mandatory for all journalists to have a thorough working knowledge of it. How many of those currently operating social media outlets do, and, come to that, how many of their managers?
One illustration. To tweet is to publish. Re-tweeting is also publishing. Most organisations and individuals use the line “a re-tweet is not an endorsement” by their twitter handle. Presumably they believe that this will provide protection against defamation. This is dangerous nonsense. If you re-tweet a libel, regardless of whether or not you say you “endorse” it you are publishing a libel and are liable for the legal consequences. Not agreeing with the content is not a defence.
For any organisation or individual using social media on its behalf to be ignorant of publishing law is reckless and should be of great concern to trustees.
Make a mistake and the price could be catastrophic. In the Monroe Hopkins case damages of £24,000 were awarded against Hopkins, as were the total £100,000 of legal costs. There are a few Northern Ireland charities that would have the reserves to cover that, but not many.
There have been previous libel actions arising from tweets, but this case has had so much publicity we can now take it that “twibel” has come of age.
Most reading about the case will see it as a “rentagob” to use Hopkins’s own lawyer’s description getting a come-uppance. The publicity does have some potential to stem the tide of vitriol, abuse and fake news that washes through social media.
But there are potential consequences for all organisations that are not prepared to study the law, take precautions and protect themselves. You do not have to be a “rentagob” to get on the wrong side of a libel action.
The facts are these. Katy Hopkins had become embroiled in an abusive online argument with New Statesman journalist Laurie Penny after the latter apparently expressed approval of the vandalization of a war memorial.
Several days later Hopkins tweeted: [email protected] scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom. Grandma got any more medals?”
It appears that she had mistaken Jack Monroe for Ms Penny. Monroe took exception: her father was in the Army, her brother is in the RAF and she was appalled by the vandalism. She demanded a retraction and apology. A few hours later Hopkins deleted the tweet but later sent another which read: “Can someone explain to me – in 10 words or less – the difference between irritant @Penny Red and social anthrax @Jack Monroe.”
Much of the case revolved around whether or not Monroe suffered “serious harm” the test applied by the Defamation Act of 2013. Please also note that this all came about because Hopkins had mixed two people up, she had made a mistake.
Mr Justice Warby concluded she had saying: “Their publication not only caused Ms Monroe real and substantial distress, but also harm to her reputation which was serious, albeit not “very serious” or “grave”.”
That was why he set damages at £24,000.
It is important to note that if this case had been heard in Northern Ireland the argument around how serious the damage was could not have been made. Former Finance Minister Sammy Wilson did not introduce the 2013 Act over here so we still operate under previous legislation which doesn't require a serious harm test.
Therefore it is easier to take a defamation case in Northern Ireland than in the rest of the UK. Reforms were being considered, a consultation was carried out and a report was published in June of last year by the Department of Finance, but legislation cannot be enacted in the absence of an Executive and Assembly.
At the time that the new Act was being prepared many justified it on the grounds that it would stem the flow of “libel tourism” in the UK. In the early part of this century London had gained the reputation as being the global defamation capital. The lack of reform in Northern Ireland means that defendants here are more vulnerable. They will also face juries rather than judges and juries have historically had a habit of fixing damages much higher than the judiciary.
Many English legal commentators are pointing out that if Hopkins had swiftly corrected and apologised for her error then the case would not have passed the “serious harm” test and she would perhaps not even have been sued in the first place.
However we do not have that comfort here: the 2014 judgement that those opinions rely on cannot apply because we have a different legal test for what constitutes defamation.
The first successful twitter libel case in the UK was when Lord McAlpine sued Sally Bercow, wife of the Speaker of the House of Commons. Lord McAlpine was falsely accused by BBC’s Newsnight of being a paedophile, although the programme did not name him. This prompted a guessing game on Twitter during which Bercow tweeted: "Why is Lord McAlpine trending? *innocent face*"
Even after she had apologised to Lord McAlpine Mrs Bercow still did not appear to understand the seriousness of what she had done, claiming it was foolish rather than libellous. She knows better now.
This latest case will inevitably lead to an explosion of twibel actions. It is safe to predict that many of those who will find themselves as defendants will not have been aware that they had done wrong at the time, and their ignorance, by not taking swift corrective action to limit the damage will compound the matter and lead to higher damages.
People, quite rightly, are not allowed to drive on their own without first passing a driving test. Yet social media accounts are often run by people who do not have the faintest idea of the risks they run.
This article has been confined to libel. Publishing law also embraces copyright. Copyright rules are routinely breached on the web, yet owners do watch and often take action. The Ched Evans case brought home the fact that restrictions on naming witnesses in sex offence cases applies to social media users not just newspapers. And there’s contempt of court as well, as those twitter users who shared pictures of Jon Venables who murdered James Bulger found to their cost.
It is time that all responsible organisations brought themselves up to date with the law, analysed the risks, adopt social media guidelines and apply the same principles of governance to online activity as they do to everything else.
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