False rape allegations on social media result in substantial damages

Facts

The claimant was Jack Aaronson, a US citizen and resident also known as Dominic Ford. He was well known in the gay pornography industry as a performer and as the founder of the website JustFor.Fans (JFF), a platform on which adult film performers provide content to their fans and subscribers.

The defendant was Marcus Stones, also known as Mickey Taylor, a UK citizen who, according to his Twitter (now X) account, was based in Manchester, England. He was an adult film performer who used JFF and had done some promotional work for it.

Over the course of 14 days in June 2020, the defendant published a series of 10 tweets to his 140,000 followers on Twitter, accusing the claimant of: (a) raping an identified individual; (b) raping multiple other men; (c) being a serial rapist; and (d) abusing his position in the adult entertainment industry in order to rape models. The defendant also gave a video interview published on YouTube in March 2021, in which he again accused the claimant of rape.

The defendant’s key witness was a fellow adult film performer named Cooper Tennent, also referred to in the judgment by his performing name “Tannor Reed”, who claimed to have been raped by the claimant. It was accepted that Mr Tennent and the claimant had had sex on a number of occasions – in particular, on two occasions on 28 May and 29 May 2019. Mr Tennent’s evidence was that he did not consent to the sex on 28 May 2019, and that he withdrew consent halfway through sex on 29 May 2019, but the claimant carried on having sex with him regardless, at which point it became rape. It should be noted that, as an alleged victim of rape, Mr Tennent would ordinarily have been entitled to anonymity. Yet it was his express choice to be named in the proceedings.

Issues

The issues to be determined by the High Court were:

1. What was the natural and ordinary meaning of the words complained of?
2. Did each of the tweets and the YouTube video cause serious harm to the claimant’s reputation?
3. Could any of the tweets or the YouTube video be defended on the basis that they were: (a) true or substantially true for the purposes of section 2 of the Defamation Act 2013; or (b) publications on a matter of public interest for the purposes of section 4 of the Defamation Act 2013?
4. What would be the quantum of any damages (if awarded)?

Meaning

The question was how a hypothetical reasonable reader would have understood an allegation of rape. Would they understand that rape requires the absence of a reasonable belief by the alleged perpetrator that the complainant was not consenting? Or would they consider that it simply means that the perpetrator had intercourse with someone who was not consenting, irrespective of the perpetrator’s state of mind and their belief about whether the complainant was consenting?

Mr Justice Knowles decided that the ordinary meaning of the word “rape” implies a requirement of a lack of belief on the part of the perpetrator, and not simply an absence of consent by the complainant.

Serious harm

The claimant’s case on serious harm was largely unchallenged. Knowles J found that each of the publications caused (or was likely to cause) serious harm to the claimant’s reputation because of: (a) the extremely serious nature of the allegations of criminal behaviour of a sexual nature; (b) the related allegation that the context for the claimant’s rapes had been the abuse of his position within the gay pornography industry; (c) the extensive publication to the defendant’s many thousands of Twitter followers; (d) the concrete evidence presented by the claimant of the reaction of some who viewed the tweets; and (e) the evidence presented by the claimant of the loss of revenue that JFF had suffered in the wake of the publications.

Defences

Truth

The defendant only presented evidence of one person that the claimant had purportedly raped. He abandoned the accusations in relation to an identified second complainant and, while he maintained that an unnamed third person had come to him to accuse the claimant of rape, he refused to divulge any details, which he said was out of respect for that person’s anonymity. That was not sufficient evidence to support an accusation that the claimant had raped multiple people, or was a serial rapist, and so the defence failed immediately in relation to those allegations.

As to the allegations that the claimant had raped Mr Tennent on 28 and 29 May 2019, that was an unusual case, in that the sexual encounter on 29 May was all on film. Mr Tennent and the claimant had been together at an industry event, and Mr Tennent had agreed to test the claimant’s new 3D camera by filming a pornographic scene together.

The judge carefully considered this evidence against the witnesses’ testimonies and decided that Mr Tennent’s evidence was unreliable in a number of respects. He did not believe Mr Tennent was lying; indeed he had little doubt that Mr Tennent genuinely believed that what he said in evidence was true. Yet he commented that memory is fallible, and that Mr Tennent’s testimony was inconsistent with the contemporaneous evidence. The judge also found that the claimant had reasonable grounds to believe that Mr Tennent was consenting to sex on each occasion that he claimed to have been raped. On the balance of probabilities, then, the defendant had not proved that his publications were true or substantially true.

Publication on a matter of public interest

There are three essential questions to be answered by a defendant in establishing a successful public-interest defence:

1. Was the statement on a matter of public interest, or did it form part of such a statement?
2. If so, did the defendant believe that publishing the statement was in the public interest?
3. If so, was that belief reasonable?

In the present case, the answer to each question was no, and the defence failed accordingly.

On the first question, the defendant argued that the central subject of the tweets and the YouTube video was rape, sexual assault, exploitation and abuse in the adult entertainment industry. That argument failed, as the connection with the industry was absent from all but two of the publications. They were not presented as illustrative examples of a generally recognised problem within the industry; they were accusations of rape and, when viewed objectively, were little more than a public, specific and targeted attack on the claimant. The two publications that referred to abuse of position within the industry came closer to being “on” a matter of public interest, but the judge considered that they did not cross the relevant threshold, and that the industry connection was still peripheral or tangential.

The judge found that none of the publications was on a matter of public interest, and the defence failed at the first hurdle. As the judge noted: “Discussion of rape and sexual abuse (or abuse in general) in any industry will likely be a matter of public interest. Making public accusations of rape against a named individual is not (or not necessarily) in the public interest.”

Nonetheless, the judge continued to consider the other questions in case he was wrong on that point.

• The defendant failed to demonstrate that he had turned his mind to the public interest when publishing five of the 11 publications, and so those five publications could not satisfy the second criterion.
• Even if he genuinely believed it was in the public interest to publish the remaining six publications, his belief was not a reasonable one. The defendant considered that he was performing a similar sort of role to a journalist, and so was held to the same standards expected of professional journalists. Among the eight reasons given by the judge, two notable points were that: (a) the defendant had not made any attempt to verify that what Mr Tennent had said was true; and (b) he had accepted and believed Mr Tennent’s story at face value without checking it against what Mr Tennent had said previously or asking him any close questions about it. Notably, he did not give the claimant a meaningful opportunity to respond to the allegations, nor did he ask the claimant what his version of events was, and so the publications did not contain the claimant’s side of the story.

Quantum of damages

The court awarded £110,000 in damages and aggravated damages, taking into account a host of factors, including the seriousness of the allegations (some of which the defendant was completely unable to substantiate), the scale of publication, the impact of the accusations on the claimant’s personal and professional life, the defendant’s apparent motive for making the publications being a campaign of revenge against the claimant, and the lack of retraction or apology from the defendant.

Comment

The claim concerns 11 separate publications on social media, which the claimant asserted were part of a vendetta by the defendant against him. In certain other cases involving multiple publications on social media,^[2] there have been occasions where claimants have failed to convince the court which of the publications has caused serious harm to their reputation, and the court has ruled that harassment would be a better cause of action than defamation to address the objectionable course of conduct. Yet in those cases there was a much more limited number of publishees, as opposed to the present case, where the defendant had more than 140,000 followers. In this case, then, the inferential case on – and actual evidence of – serious harm to the claimant’s reputation was enough to take each individual publication over the threshold.

Some may have assumed that accusations of the type being alleged would automatically be considered to be “on a matter of public interest”. This judgment is therefore a welcome reminder that cases of this nature will invariably turn on their own facts. A publication will not automatically qualify for the protection afforded by section 4 of the Defamation Act 2013 simply because it relates to a serious allegation. As noted in the judgment, there must be an element of the publication that “relates to the public life of the community and those who take part in it”.^[3]

Even then, the publisher – including “citizen journalists”, bloggers and activists on social media – must carefully consider how far there is genuine public interest in the allegations and take appropriate steps to guard against publication of defamatory material.

Article written for Entertainment Law Review.