Rachel Riley succeeds in her online harassment libel claim to strike out the defence of blogger Michael Sivier

10 February 2021

Practice Area: Media and Entertainment

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In Riley v Sivier [2021] EWHC 79 (QB), a judgment was handed down on 20th January 2021. Mrs Justice Collins Rice granted the claimant’s application to have the defendant’s defence struck out insofar as it dealt with the defences of (i) truth, (ii) honest opinion and (iii) publication on a matter of public interest.

Background

The claimant, a well-known television presenter, brought a defamation action against the defendant over an article published on his website.

The dispute arose concerning a debate on Twitter about antisemitism and the Labour Party, which had featured in British politics in recent years. The claimant was Jewish and had spoken out publicly with concerns over Labour's handling of antisemitism, and about antisemitism more generally. The defendant's website politically supported the former Labour leader (“C”). The dispute also involved a 16 year old Twitter user (“R”) who described herself as sympathetic to Riley and a newcomer to the antisemitism debate.

At a December 2019 preliminary hearing, the court held that the statement complained of, if it were true, meant that:

  • The claimant had engaged on, supported, and encouraged, a campaign of online abuse and harassment of R; conduct which had also incited her followers to make death threats towards her; and
  • By so doing, the claimant was a 'serial abuser' and had acted hypocritically, recklessly, irresponsibly and obscenely.

The court further held that the meaning as a whole was defamatory at common law. In his defence, the defendant wished to defend it as true, his honest opinion and that it was public interest information. The claimant applied to strike out the defence in its entirety.

Issues

The issues that the court had to decide when deciding whether to strike out the defence were as follows:

  • Whether it was a sustainable proposition of fact that the claimant had engaged on, supported, and encouraged, a campaign of online abuse and harassment, in circumstances where the defendant pleaded the defence of substantial truth; and
  • Whether the defences of honest opinion and public interest should be struck out.

The Court’s Decision

Issue 1

Where a defence of substantial truth was raised to an allegation that a claimant had done some positive act, then the defendant had to plead specific primary facts capable of establishing that truth.

The initial December 2019 ruling meant that the present court had to proceed on the basis that the defendant had actually made a defamatory allegation of fact about the claimant: this being that she had engaged upon, supported and encouraged a campaign of online abuse and harassment of a 16-year-old girl, conduct which had also incited her followers to make death threats towards her. To defend himself in relation to this defamatory allegation of fact, the claimant had to prove it was 'substantially true'.

It was not disputed that 'engaged upon, supported and encouraged' suggested deliberate, purposeful behaviour by the claimant, and that 'a campaign' indicated a connected course of conduct with an outcome in view. The campaign alleged was one of 'online abuse and harassment', meaning a persistent, deliberate, unacceptable course of targeted oppression. Where harassment by words was alleged, that had to be tested against the legal protections for free speech, including Article 10 of the European Convention on Human Rights. 'Abuse and harassment', objectively considered, were strong factual allegations of serious interpersonal misconduct outside the boundaries of accepted everyday interactions.

In all the circumstances, the tweets, by themselves, but taken as a whole and in context, could not arguably sustain a defence of the truth of the allegations of fact with a realistic prospect of success at trial.

The court had not been able to discern in the defendant's pleadings a case, arguable with a realistic prospect of success, that it was substantially true that the claimant had engaged on, supported and encouraged a campaign of online abuse and harassment of R. That, itself, precluded the possibility of arguing that any such conduct incited others to make death threats to R. If such threats had been made, there was no basis for saying they had been incited by R's conduct, as alleged, since there was no arguable basis for establishing the objective fact of that course of conduct.

It was neither fair, nor in the interests of justice, for a proposed defence of substantial truth to proceed to trial. The defendant's pleading disclosed no reasonable grounds for defending the substantial truth of his factual allegations and, to that extent, fell to be struck out.

Issue 2

To defend he had to show that an honest person could have held the opinion on the basis of any fact which existed at the time of publication. Defamatory expressions of opinion might be defended if an honest person could have held them on the basis of any fact which existed at the time of publication.

If it was not even arguably true that the claimant had engaged in or encouraged and supported a campaign of online abuse and harassment of R, opinions based on the fact of her having done so could not, themselves, survive to be defended. The defendant's article had been ruled to have nailed its colours to the mast of a factual allegation and a series of consequential opinions. The expressions of opinion identified and ruled to be such were not coherently severable from the allegations of fact. If the claimant did not engage in, encourage or support a campaign of online abuse and harassment of R, there was no survivable basis in the pleadings to defend an opinion that by so doing she was a serial abuser, such that each proposition falls with the previous one.

The same had to go for the public interest defence. There could be no reasonable belief in the public interest in publishing untrue allegations and unsustainable opinions without some clear explanation and justification. None appeared in the present case.

Conclusion

This case is a most instructive case study into the Court’s approach to online interactions, particularly on Twitter.

Certainly, the court accepts that micro bogging platforms and websites alike are a public forum founded on important principles of free speech.

But where personal views are exchanged in this arena, on a topic of intense and polarised political debate, and on a subject which could hardly be more sensitive in its engagement with profound issues of personal and community identity, then strong feelings will be unsubtly expressed, and offence caused and taken. Twitter can be a haunt of trolls. The vulnerable enter at great personal peril. (Paragraph [54])

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.

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