Countdown final – appeal dismissed in Rachel Riley libel case

Background

The original claim turned on two tweets.  

• The first tweet was made by Ms Riley after an egg attack on the former leader of the Labour Party, Jeremy Corbyn.  She re-tweeted an earlier tweet from Owen Jones, a journalist for the Guardian, together with the words “Good advice” and emoticons of an egg and a rose (the emblem of the Labour Party).  Mr Jones’ original tweet was in response to an egg attack on Nick Griffin, the former leader of the British National Party, in which he stated: “Oh: I think an egg was thrown at him actually. I think sound life advice is, if you don’t want eggs thrown at you, don’t be a Nazi. Seems fair to me.”
• The second tweet was posted by Ms Murray in response to Ms Riley’s tweet.  It stated: “Today Jeremy Corbyn went to his local mosque for Visit my Mosque Day and was attacked by a Brexiteer. Rachel Riley tweets that Corbyn deserves to be violently attacked because he is a Nazi. This woman is as dangerous as she is stupid. Nobody should engage with her. Ever.”  Ms Murray’s tweet did not “re-tweet” or “quote” Ms Riley’s tweet.

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Claim

Ms Murray’s tweet was the subject of the libel claim, and Ms Riley maintained that the tweet had caused serious harm to her reputation.

At a preliminary hearing on the natural and ordinary meaning of Ms Murray’s tweet, Mr Justice Nicklin found that the statement that Jeremy Corbyn “deserved to be violently attacked” and the reference to Ms Riley’s being “dangerous” and “stupid” for inciting unlawful violence were both defamatory. [2]

At the hearing at first instance before the High Court, Ms Murray relied on defences of trust, honest opinion and public interest, provided for by sections 2, 3 and 4 of the 2013 Act. 

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Ruling at first instance

In a judgment handed down in December 2021, Nicklin J ruled that each defence failed, as Ms Murray had not satisfied the relevant criteria for each defence.

• Truth – To satisfy the defence of truth, Ms Murray was required to demonstrate that “the imputation conveyed by the statement complained of is substantially true”  – i.e. in this case, that the claimant publicly stated in a tweet that Mr Corbyn deserved to be violently attacked.  At face value, Nicklin J found that Ms Riley’s tweet did not state that, instead finding that Ms Riley’s tweet was open to interpretation, and from its ambiguity several meanings could be conveyed.  The trial judge commented that the language used by Ms Murray in her tweet presented the statement as a fact and removed the ambiguity that was contained in the original tweet.
• Honest opinion – Nicklin J found that the defence failed as it did not satisfy section 3(4)(a) of the 2013 Act (i.e. that an honest person could have held the opinion on the basis of any fact that existed at the time of publication), and that at common law the opinion had to be based on facts that were proved to be true or protected by privilege.  Section 3 broadly reflects the previous common-law position, and Nicklin J found that to allow a defence to succeed based on honest opinion where the opinion is based on false underlying facts would represent “a fundamental (and radical) departure from the settled position at common law”. [3]
• Public interest – Nicklin J applied the three-part test set out in Economou [4] to determine whether the matter was in the public interest.  The judge was satisfied that Ms Murray satisfied the first two strands of the test: (a) that the statement was a matter of public interest and was not a personal or private matter; and (b) Ms Murray believed that publishing the statement was in the public interest, in that, on Ms Murray’s interpretation of the tweet, Ms Riley was encouraging an attack on Jeremy Corbyn.  Yet the defence failed on the third strand as to whether Ms Murray’s belief was reasonable.  The judge found that, by not re-tweeting or quoting Ms Riley’s tweet, Ms Murray has misrepresented the material and so could not establish that she reasonably believed an inaccurate publication was in the public interest.

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Court of Appeal ruling

Lord Justice Warby gave the lead judgment after considering each of the three defences.

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Truth

Ms Murray challenged the High Court decision on the basis that the judge had incorrectly applied the law and should have considered whether a section of the audience could reasonably have understood Ms Riley’s tweet as having the meaning conveyed in Ms Murray’s tweet, citing Begg v BBC. [5]  Nicklin J’s own interpretation found that the “good advice” tweet could be interpreted in the manner that Ms Murray (and a section of the audience) had, which Ms Murray argued made her statement substantially true.  In response, Ms Riley stated that nothing in her tweet either expressly or by implication stated that Jeremy Corbyn should be violently attacked.

Ms Murray also argued that the court should follow Mr Justice Haddon-Cave’s approach in Begg that the court “does not have to find a single meaning”, but “simply has to decide whether a section of the audience would reasonably take the words spoken to convey a particular meaning”.

Warby LJ stated that Haddon-Cave J was not identifying a universal rule, but applying the law to the facts of the particular case, endorsing Nicklin J’s observation that the meaning understood by the audience will be case-specific.  In Begg the wording of the allegation asked the audience to “convey” the meaning based on several speeches and posts, whereas in the present case the wording of the tweet presented an unequivocal fact.  Had Ms Murray worded her tweet to ask the audience to interpret that meaning from Ms Riley’s tweet, she might have been successful, but by presenting it as a fact that was found not to be true, she failed in her defence.

Warby LJ further affirmed the findings of Nicklin J, stating that, while a statement could be interpreted as conveying two meanings, that does not establish the truth in one of those meanings.

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Honest opinion

Ms Murray contended that the trial judge was wrong to rely on the common law to give section 3(4)(a) a construction that its words do not bear.  She argued that the court should apply the ordinary and natural meaning, and that the approach taken by Nicklin J required additional wording to be included in the statutory language.  She further argued that the explanatory notes accompanying the Act were not needed, as the meaning of the statute was not ambiguous.

Warby LJ conceded that, on a literal reading of section 3(4)(a), there must be (a) a fact of whatever nature, (b) at the time of publication, (c) that would allow an honest person to express the opinion complained of.  No connection was necessary between the facts indicated in the offending statement and the facts that supported the opinion.  He noted that on a literal interpretation, the defence could succeed if the facts relied on are false, as long as there is a fact that could support the opinion of the honest person.

While agreeing with the literal meaning, Warby LJ considered that this construction was unlikely to have been Parliament’s intention, as it would create a dramatic change from the common-law position.  The explanatory notes accompanying the Act state that the wording of the statute broadly reflects the common-law position, with some simplifications.  Warby LJ repeated Nicklin J’s findings that to apply the literal meaning would result in odd and unintended outcomes, and he noted the importance of considering the explanatory notes, as “the context disclosed by the materials is relevant to assist the court to ascertain the meaning”. [6]  He could see no logical or policy rationale to explain a departure from the common law.

Warby LJ noted that, in this case, it was not relevant to consider any other facts, as the wording used by Ms Murray – in particular, the wording “by doing so” and “shown herself to be stupid and dangerous” – explicitly linked Ms Murray’s opinion to the factual allegation made in Ms Murray’s tweet, i.e. that Jeremy Corbyn deserved to be violently attacked.  The opinion was expressly premised on the truth of the factual allegation and so, when the allegation was found to be false, the defence also failed.

Warby LJ found that, even if there were other facts to support the defendant’s opinion, the wording used by the defendant in the tweet specifically linked her opinion to the actions of the claimant in this one instance.   It also failed as her interpretation of the “good advice” tweet was in itself an opinion, not a fact.  Warby LJ considered that, where a defendant expresses a defamatory opinion that is expressly based on a single factual allegation, the honest-opinion defence is likely to fail if that assertion is false.  He noted that this approach might be open to abuse, and he suggested that trial judges should be alert to attempts to force opinions that are based on several facts into cases where there is reliance on only one clear factual allegation.

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Public interest

Ms Murray appealed the decision on the basis that the trial judge:

(a)           required Ms Murray to give a true description of Ms Riley’s tweet, instead of an honest description;

(b)           failed to consider the steps taken by Ms Murray to arrive at her belief that the statement was in the public interest;

(c)           failed to allow for editorial judgment; and

(d)           failed to account for Ms Riley’s provocative conduct.

In response, Ms Riley contended that the rejection of the defence should be upheld or, alternatively, the defence should have failed on the first strand because the propriety or otherwise of her conduct in posting the “good advice” tweet was not capable in law of being a matter of public interest.

What constitutes a matter of public interest?

In suggesting that the matter was not in the public interest Ms Riley cited Gately on Libel and Slander [7] that matters of public interest should be reserved to “business of government and political conduct” in addition to other limited matters, and that Ms Riley’s tweet did not fall within one of the defined categories. 

Warby LJ rejected this submission, stating that it would be wrong to take a narrow view on what may constitute a matter of public interest.  He confirmed that matters which are “personal and private such that there is no public interest in their disclosure” [8] were excluded, but he preferred the broad approach identified by Lord Bingham in Reynolds, i.e. “matters relating to the public life of the community and those who are part of it”. [9]  Warby LJ also noted that, by choosing to use a public platform with a substantial readership, it was artificial to argue that the matter was not in the public interest.

Was the judge wrong to hold that Ms Murray’s belief was, although honest, unreasonable?

Nicklin J had found that it was not reasonably in the public interest for Ms Murray to present the information in Ms Riley’s tweet in the manner that she had.  Warby LJ outlined that, in order to overturn such a decision, the defendant needed to satisfy the demanding test that the decision was wrong “by reason of some identifiable flaw … gap in logic, lack of consistency or a failure to account for a material factor which undermined the cogency of the conclusion”. [10]

Warby LJ considered the significance of ambiguity in the public-interest defence.  In Banks v Cadwalladr, Mrs Justice Steyn held that a defamatory meaning should not be ignored by a journalist if it is “obviously one possible meaning” or “glaringly obvious”, and that to do so would not be reasonable. [11]  Warby LJ acknowledged that the principles might not directly apply to the situation in the Riley case, but a more generous test had not been sought by the defendant.  From the defendant’s interaction with the claimant’s tweet and from the obvious ambiguity of the tweet, the defendant should have been aware that the claimant’s tweet was ambiguous.  The defendant’s argument that the reasonableness test should be based on her belief and understanding of the tweet, and that it was in the public interest, was found to be simplistic and wrong by Warby LJ.  He further stated that it could not be reasonable to denounce a person as dangerous and stupid for what they said in a public statement if that statement has an obvious alternative or lesser meaning.

Warby LJ highlighted that this approach is consistent with Economou, in that a belief is reasonable for the purposes of section 4 “only if it is one arrived after conducting such enquiries and checks as it is reasonable to expect”.  Warby LJ also dismissed the defendant’s additional grounds for appeal as having no merit or being irrelevant.

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Comment

Lord Justice Dingemans and Lord Justice Arnold agreed with the findings in the lead judgment. 

Warby LJ emphasised the importance of interpreting and applying the statue faithfully to fulfil Parliament’s intentions, but also in a coherent manner.  In applying section 3(4)(a), Warby LJ explored how a literal interpretation could give rise to unusual outcomes, and noted that, when considering the application of that section, judges should consider the wording of the explanatory notes and previous case law. 

The judgment also provides a useful reminder of the relatively open-ended breadth of the public-interest defence.  It also suggests that a publisher should consider any obvious alternative meanings when a comment on source material is ambiguous or should simply make sure to include the source material.

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