Twitter defamation: a cautionary tale

The normal laws of libel apply to publications on Twitter. This case is a stark reminder that the consequences of a 280 character tweet can be serious. If the individual who posts the offending tweet has a small number of followers then a claim for libel might fail, however, a tweet going “viral” can mean the tweet reaches a large number of people very quickly. The degree of retweets and likes can be used to illustrate the level of reputational harm.

• On 23 December 2019, at 19:50, Dr Jessen posted a defamatory statement on Twitter that accused Mrs Forster of having an affair with one of her close protection officers and that her marriage had broken down.
• At the time of the offending tweet, Dr Jessen had over 311,000 followers on Twitter. By 6 January 2020 the tweet had been retweeted 517 times and had been liked approximately 3,500 times.
• On 24 December 2019, Mrs Foster’s solicitor, Mr Tweed of Gately Tweed, was unable to find an address for the defendant so tweeted Mr Jessen in the following manner:

“I am putting Dr Christian Jessen on notice in relation to a totally false allegation he has tweeted regarding DUP Leader and former NI First Minister, Arlene Foster. Legal action will also be taken against any persons who have retweeted this highly defamatory allegation”

• This tweet garnered many Twitter responses which were acknowledged by Mr Jessen who tweeted “lol” in response. The trial bundle contained over 60 pages of printouts of the numerous tweets made by other Twitter users in response to Dr Jessen’s tweet and Mr Tweed’s tweet.
• Mrs Foster then issued a letter of claim on 2 January 2020. This restated Mrs Foster’s categorical denial that she had committed adultery and that her marriage was a sham. The letter reminded the defendant that the tweet remained accessible on Twitter despite him being put on notice on 24 December 2019 that the offending tweet was false and defamatory. The letter referred to Mr Jessen’s acknowledgement to Mr Tweed’s tweet. The letter stated the defendant’s behaviour “has further exacerbated the damage caused to our client’s reputation by portraying her as a liar and a hypocrite in her denials”.
• The letter required Mr Jessen (1) to remove the tweet (2) to undertake not to republish the subject or related allegations (3) to publish a “comprehensive retraction and apology” (4) to compensate Mrs Foster; and (5) to reimburse Mrs Foster’s legal costs.
• Dr Jessen responded to the letter of claim via email on 7 January 2020 and deleted the tweet on the same day. His email stated that the tweet did not give rise to a claim in defamation.
• Mrs Foster’s solicitor replied to d Dr Jessen by email on 9 January 2020 reiterating the requirement for the defendant’s proposals for publication of a retraction and apology and proposal in relation to damages. Dr Jessen did not respond to this email or any of the solicitor’s subsequent letters or emails sent between 20 January 2020 and 9 April 2020.

• The matter was heard by the High Court in Northern Ireland and the judgment was handed down by Mr Justice McAlinden.
• The Court awarded Mrs Foster damages of £125,000 and discussed the award of general damages for defamation matters, highlighting that damages are intended to serve three functions:
• To act as a consolation to the claimant for the distress suffered from the publication of the statement
• To repair loss to the claimant’s reputation
• As a vindication for the claimant’s reputation. This aspect is there to ensure that if allegations re-emerge, the damages are large enough to show the baselessness of the libel. Vindication can be achieved in whole or in part by an apology or statement by the Defendant that the statement is unfounded.
• Of particular relevance was that Dr Jessen did not comply with Mrs Foster’s request for a public apology and retraction. Vindication was not achieved as a result which was reflected in the award of damages.
• In addition to the award of damages, Mrs Foster was awarded her costs on the indemnity basis. This means that there is no requirement for the costs sought to be proportionate and it puts the onus on the defendant, Dr Jessen, to show the costs claimed are unreasonable. The level of costs awarded has not been published but this generally means that the receiving party will recover a higher percentage of their costs.
• The prominent standing and responsible position of the defendant was also relevant. The Court found that people reading the tweet would have assumed that Dr Jessen, as a well- known medical practitioner, would not have published such allegations unless he considered them to be well-founded. Although there had been tweets by other anonymous users prior to Dr Jessen’s tweet, the Court found that there was a significant difference between anonymous users posting allegations of this natures and a significant public media figure who, at that time, had approximately 311,000 followers.

• It was of relevance that there was no immediate response to the letter of claim and that the tweet remained on Dr Jessen’s twitter for some time. The Judge quoted Stephens J from the earlier case of Elliot v Flanagan [2017] who stated “the speed of response is… particularly relevant matter to be taken into account in defamation proceedings”. Although the tweet was eventually removed, the Court found that this put a cap on this as an aggravating factor rather than the removal constituting a mitigating factor. Mr Tweed’s tweet to Mr Jessen on 24 December 2019 had the effect of putting Mr Jessen on notice and the tweet was not removed until 14 days later.
• The Court found that Dr Jessen’s response to the letter of claim was “deliberately inaccurate and misleading” as it asserted that he had only accessed the email account on 7 January 2020. Evidence before the Court showed that Dr Jessen had obtained legal advice in relation to the letter of claim on 3 January 2020. Despite this, the tweet remained on his page for 4 days. The Court found Dr Jessen’s evidence about his non-receipt of the email from Mr Tweed dated 9 January 2020 to be “wholly unsatisfactory and unconvincing”.
• The Court found that as a result of the approach adopted by Dr Jessen, it was unable to identify any factors which would mitigate the damages awarded.

As a result, the damages awarded were deemed proportionate in all the circumstances by the Judge.

This case illustrates the point that a reputation is a fragile thing and that social media is no longer the place for a careless throwaway comment, regardless of the intentions behind it. It is important to seek expert legal advice when it comes to the management and protection of your reputation.