“He tried to strangle me”

3 April 2019 by

Stocker v. Stocker [2019] UKSC 17read judgment

…..the graphic opening words of today’s decision by the Supreme Court in a defamation case. The next words are equally clear and arresting: ” What would those words convey to the “ordinary reasonable reader” of a Facebook Post?”

The context was a recently ended unhappy marriage between Mr Stocker (the Claimant) and Mrs Stocker (the Defendant), and a series of posts arising out of a Status Update by a Mrs Bligh (Mr Stocker’s new partner) in December 2015. Mrs Stocker and Mrs Bligh commented on each other’s posts for the next 2 hours 18 minutes. Mrs Stocker did not mince her words: “I hear you have been together 2 years? If so u might like to ask him who he was in bed with the last time he was arrested.”

This was quickly followed by “wouldn’t bring it up last time I accused him of cheating he spent a night in the cells, tried to strangle me..”. This was a reference to an incident which had happened some 12 years before.

Mr S did not take kindly to this attempt “to blacken [him] in the eyes of his current girlfriend and belittle her”: as the Court of Appeal put it.

He sued. He won before the judge, and before the Court of Appeal.

But the Supreme Court allowed Mrs S’s appeal.

In retrospect, things started going wrong early in the trial before Mitting J. The judge had been looking at the dictionary definition of “strangle” before the case began. The definition contained two possible meanings (a) to kill by external compression of the throat and (b) to constrict the neck or throat painfully. This choice guided his approach.

Lord Kerr explained the problem with this approach in no uncertain terms at [47].

“Anyone reading this post would not break it down in the way that Mitting J did by saying, well, strangle means either killing someone by choking them to death or grasping them by the throat and since Mrs Stocker is not dead, she must have meant that her husband tried to kill her – no other meaning is conceivable.”

If that is what it had meant, it is no surprise that Mrs S failed to justify (prove the truth of) these words.

Lord Kerr concluded that this meaning as determined by the judge was simply wrong in law. It was wrong to let the dictionary meanings confine the possible meanings of a Facebook post: [60]. By contrast, the meaning here was obvious:

“Knowing that the author was alive, he or she would unquestionably have interpreted the post as meaning that Mr Stocker had grasped his wife by the throat and applied force to her neck rather than that he had tried deliberately to kill her.”

Without any difficulty, Mrs S justified this meaning. After all, as the judge found, she had reddening marks around her throat which were subsequently seen by the police who attended.

Hence the Supreme Court dismissed Mr S’s claim.

The interest of the decision goes well beyond immediate unhappy litigation between an ex-husband and wife.

But first an explanation of some oddities which may puzzle those readers who are not defamation lawyers. Why this talk of “one meaning”? A lot of what we say in everyday life is to a greater or lesser extent ambiguous. But the law of defamation has set its face against this when determining meaning, whilst recognising its artificiality: see [33]. The single meaning rule provides a practical workable solution, as Lord Kerr put it; where a statement has more than one plausible meaning, it is for the judge to decide which particular meaning should be ascribed to it.

That task is to be carried out by the judge putting him or herself in the position of a hypothetical reasonable reader, not naive, nor over-suspicious, over-elaborate (difficult for lawyers to avoid, often) – and the reader reading the article or statement as a whole.

Context is critical, as Lord Kerr explained at [39]-[46]. For some years now, the judges have been assessing meaning of statements on social media, and how they arise. They are conversational pieces. Readers tend to scroll through quickly, and their reactions to posts impressionistic and fleeting. An analogy is with people chatting in a bar. They are often uninhibited, casual, and ill-thought out. Those who participate know this and expect a certain amount of repartee.

As we have seen, the Supreme Court concluded that the inescapable meaning was no more than Mr S had grasped his wife by the neck, saying that judge and Court of Appeal had got this wrong.

Unsurprisingly, given this, the Court summarised the caselaw on where an appellate court should substitute its view for that of a trial judge. It should be slow to do so [58] and calls for disciplined restraint by the appellate court: [59]. Meaning in the law of defamation is an issue of fact, where meaning of a contract or statute is a question of law. But if the meaning arrived at was vitiated by an error of law, then it is for the appellate court to decide upon the real meaning (or less often) remit the case.

Lord Kerr elaborated his conclusions as to justification in [61].

“It is beyond dispute that Mr Stocker grasped his wife by the throat so tightly as to leave red marks on her neck visible to police officers two hours after the attack on her took place. It is not disputed that he breached a non-molestation order. Nor has it been asserted that he did not utter threats to Mrs Stocker. Many would consider these to be sufficient to establish that he was a dangerous and disreputable man which is the justification which Mrs Stocker sought to establish.”

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