Chapter 7 Answer guidance to end of chapter questions

1. Can “subjective” speech ever be successfully policed by objective values such as the Defamation Act 2013?

To answer this question I would expect the student to discuss in order:

1. The problem of a disjunct between the speaker and the audience in speech. Taking as a starting point Monroe v. Hopkins [2017] EWHC 433 (QB) and the discussion therein of impressionistic communications and Warby J’s finding that the ‘impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet.’
2. Building upon this we have the Bercow tweet ‘Why is Lord McAlpine trending? *innocent face*’ and the impressionistic nature of this which in McAlpine v Bercow [2013] EWHC 1342 (QB) which led Tugendhat J to conclude that an impressionistic rather than literal interpretation must be taken.
3. Next we have the observation of Warby LJ in Riley v Murray [2022] EWCA Civ 1146 that there is not ‘a ‘fluid, hyper-impressionistic way in which readers consume Twitter’ suggesting a retreat somewhat from impressionism towards literalism in particular in defences such as the public interest defence and the honest opinion defence, a position matched in Banks v Cadwalladr [2022] EWHC 1417 (QB).
4. A discussion of the four cases – Monroe, McAlpine, Riley and Banks – should lead the student to conclude that the courts balance the interests of the parties to ensure free expression while protecting the values of the Defamation Act by allowing impressionistic interpretations of messages but narrowing towards a more literal interpretation in defences.

2. Twitter is a conversation not a publication. You shouldn’t be suing people for saying: ‘Why is [name] trending? *innocent face*.’ you should be engaging them in conversation to point out what they have said is wrong and why. Only then will your reputation be properly protected while speech is protected and free.

Discuss critically.

To answer this question I would expect the student to discuss in order:

1. Firstly to identify the facts mention the Sally Bercow case mentioned in the text but subsequently decided by the High Court (evidence of further reading) - McAlpine v Bercow [2013] EWHC 1342 (QB).
2. The first question is, is such a tweet defamatory? Has an individual been identified (yes) and is the statement defamatory (maybe – High Court said yes). Reference should be made to Monroe v. Hopkins [2017] EWHC 433 (QB) in discussing impressionistic communications.
3. There is a question here of Art.10 of the ECHR – “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” Also students should examine the philosophical foundations for free expression discussed in Ch.7. 
4. Is this a marketplace of speech issue? This is what the first amendment scholars would say. The UK has strict defamation laws – examine are they out of date now everyone has access to a broadcast media (SNP).
5. Analyse which risks are greater – harm to the reputation of the individual vs. chilling of expression. What would happen to Twitter if we let anyone say anything – refer back to the trolling and harm cases of Ch.6.

3. Ada Lovelace is a regular, and successful, gambler due to her mental arithmetic skills. Ada is a UK citizen but is currently resident in Cincinnati, Ohio. She has a brother, Charlie, who is a UK-based entrepreneur. Following a very profitable round of blackjack on the gambling site Bettr, Ada’s profile went viral and she is now something of a global online gambling star. A Bettr user operating under the pseudonym ‘PokerFace’, posted comments on the Bettr website alleging, amongst other things, that ‘Ada Lovelace is a cheat’ and ‘Ada Lovelace is a fraud, who uses her insider knowledge of the Bettr algorithms to cheat the system’. Ada’s brother Charlie sees the comments and tells Ada about them. Ada is very upset and contacts Bettr to ask them to remove the comments. Bettr replies that it is clearly stated in its terms of service that the website is governed by the law of the State of Arizona for all purposes including defamation. It therefore refuses Ada’s request to remove the posts. One month has since passed and Ada has initiated legal proceedings against Bettr before the High Court of England and Wales.

Bettr seeks your advice as to whether (a) the High Court can claim jurisdiction in this case, given that only 2,000 UK-based Bettr users saw the comments and (b) whether it can be held responsible for the publication of the comments.

To answer this question I would expect the student to discuss in order:

1. Firstly to deal with the question of the appropriate jurisdiction to hear the case. As Ada is based in Cincinnati can she raise an action in England? This means first of all referring to s.9 of the Defamation Act 2013 that “of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.”
2. Reference may be made to Dow Jones v Gutnick where in Australia a sufficient connection was found where 1,700 subscribers had paid by credit card from Australia, including several hundred subscribers in Victoria and to Berezovsky v Forbes where the High Court found that the fact that Forbes Magazine had 566 subscribers in England and Wales and the issue in question sold a further 1,349 copies at newsstands was sufficient for a connection.
3. Further analysis of the relevant cases King v Lewis, Jameel v Dow Jones and Sloutsker v Romanova should lead to a conclusion that the court is likely to find that 2,000 readers in the UK connected to the fact that Ms. Lovelace has family in the jurisdiction (and that her brother has read the comments) means the court is likely to take jurisdiction.
4. The question then is, is Bettr liable? Bettr may seek to rely upon the safe harbour of Art.14 of the Ecommerce Directive. However cases such as Metropolitan International Schools Ltd v Designtechnica Corp, and Tamiz v Google suggest this is not a complete defence.
5. Bettr may be advised to instead rely upon s.5 of the Defamation Act 2013 by “acting accordingly” under s.5(3) and The Defamation (Operators of Websites) Regulations 2013. This is more likely to give them a complete defence.