In a very detailed judgment in the case of Monir v Wood [2018] EWHC 3525 (QB), Mr Justice Nicklin set out the law in relation to various complex issues that can arise in a libel claim. The purpose of this article is not to summarise and comment on the entirety of the case, but instead to highlight how liability for an ill-considered tweet can extend to individuals other than the author. This was something that Steve Wood, the Chairman of the Bristol UKIP branch and defendant, discovered in this case, much to his surprise.
The publication
On 4 May 2015, Mr John Langley, the Vice Chairman of Bristol UKIP branch, published a tweet with the words set out below together with a photograph of Ms Sarah Champion, the Labour member of Parliament for Rotherham. The photograph also showed two men, one of whom was Mr Monir, the claimant in this action. The words of the tweet read as follows:-
“Sarah champion labour candidate for Rotherham stood with 2 suspended child grooming taxi drivers DO NOT VOTE LABOUR”
Mr Monir was not a taxi driver, nor was the allegation that he had been suspended for grooming children true.
Circumstances relating to the publication
The tweet complained of was published by Mr Langley without Mr Wood’s knowledge or specific authorisation. However, Mr Wood had been involved in the establishment and operation of the Bristol UKIP Twitter account before Mr Langley became involved. The judge found, amongst other things, that:-
* The Bristol UKIP Twitter account had been set up by Mr Wood on 1 April 2013 and it was registered using his email address. At that stage, he had sole control of the account.
* From May 2014, Mr Wood delegated day-to-day control and operation of the Bristol UKIP Twitter account to Mr Langley so that he could promote Bristol UKIP. Mr Wood had originally requested that Mr Langley submit any content he proposed to publish on the account to him for approval, although this process was never observed in practice. Mr Wood made clear to Mr Langley that he should not post anything on social media that was offensive, inappropriate, racist or defamatory.
* The Bristol UKIP Twitter account operated as the campaigning platform for Mr Wood in the lead up to the 2015 general election, in which he was standing as UKIP’s candidate for Bristol South. Although the account was not maintained exclusively of the promotion of Mr Wood’s candidacy, he was the main focus of the campaigning activity on the account. Mr Wood assigned Mr Langley the task of promoting him and his candidacy via the platform.
The judge also found that Mr Wood received a complaint from Mr Monir during a telephone conversation on or around 8 May 2015 about a tweet on the Bristol UKIP Twitter account that had called someone a paedophile, although he was not convinced that Mr Wood focused on its precise terms until he found it himself on 1 June 2015. The tweet was deleted that day.
Responsibility for publication
Even though Mr Wood did not personally post the tweet, it was asserted that he was nonetheless liable because:-
* he had directly participated in its publication;
* he was, as principal, liable for the actions of the agent;
* he was vicariously liable; and
* he became liable through his subsequent ratification of the tweet under the principle in Byrne v Deane [1937] 1 KB 818.
As Mr Justice Nicklin determined that Mr Langley was the only person who participated directly in the publication of the tweet and that Mr Wood did not specifically authorise it, Mr Wood was not held liable as a primary publisher. Accordingly, this argument failed.
The issue of agency was more complicated, not least because, as the judge noted, there are very few authorities that directly bear on the issue of liability of a defamatory statement by an agent, as opposed to an employee. After setting out the legal principles from other relevant cases at paragraphs 148-160 of his judgment, Mr Justice Nicklin decided that Mr Langley was “quite clearly acting as the agent of Mr Wood” and was thus Mr Wood was liable on this basis. His factual findings in support of this conclusion included that Mr Langley was acting in discharge of his role as campaign manager and that Mr Wood effectively retained control over the account given that it remained registered to his email address (meaning he could change the password if he so wished) and through his authority as Chairman of Bristol UKIP.
In view of the judge’s findings on agency, he declined to determine whether Mr Wood was also vicariously liable. While he expressed initial scepticism about how Mr Wood, a volunteer involved with an ad hoc group of people who shared a common interest in UKIP, could possibly be held vicariously liable, he considered it more appropriate, given the complexity of the arguments raised on behalf of Mr Monir, for the issue to be argued and determined in a case where the matter falls squarely for determination.
The principle from the case of Byrne can be summarised as follows: where a third party publishes material on a platform over which the defendant has control, the defendant can become liable for the publication if, in all the circumstances, it can be inferred that the defendant, from his failure to remove the defamatory material, acquiesced in or authorised the continued publication. The Court of Appeal endorsed Byrne’s application to online publications in Tamiz v Google Inc [2013] EWCA Civ 68. Mr Justice Nicklin was prepared to draw an inference that Mr Wood had acquiesced in the continued publication after he was put on notice of its publication during his telephone conversation with Mr Monir on or around 8 May 2015. The judge’s fundamental reason for reaching this conclusion was that Mr Wood knew the gist and substantive content of the tweet complained of when he was notified of it on 8 May 2015 yet chose not to locate and remove it at the time, which would have been a very easy step for him to take. Accordingly, Mr Wood was found to be liable for the continued publication of the tweet after he was put on notice of it by Mr Monir.
Comment
It is clear from the judgment that Mr Wood was highly aggrieved by the fact that he had been sued for a tweet he did not compose or directly publish. Mr Langley was initially included as a defendant when the claim form was issued, but his name was deleted by amendment prior to service. A claim against Mr Langley would have been more straightforward: his role in the publication of the offending words had never been in doubt. But it would seem from the decision to bring the claim solely against Mr Wood that he was regarded as having the deeper pockets, thus reducing the risk of a pyrrhic victory (and removing the risk of facing an adverse costs order in respect of two defendants in the event of a loss). Of course, Mr Monir was perfectly entitled to pursue this course of action, no matter how unfair Mr Wood found it to be. Mr Wood is potentially able to seek to his recover his losses from Mr Langely via contribution proceedings, although this seems unlikely given that he did not elect to add him as a Part 20 Defendant.
This case serves as a cautionary tale for any individual who, like Mr Wood, authorises another individual to publish content on his/her behalf. Instructions to agents ought to be carefully considered, and, checks and balances should be introduced prior to publication to ensure that libellous material is removed, or, at the very least, brought to the attention of those with potential liability so that an informed assessment of the risks can be made. With this decision on agency, and the expanding range of situations in which courts have been prepared to impose vicarious liability (see, for instance our blog on the decision in Various Claimants v WM Morrison Supermarkets PLC [2018] EWCA Civ 2339), claimants’ advisers will no doubt spend even more time at a pre-action stage identifying the party or parties against whom the claim should be brought, in order to meet their client’s objectives. Those entrusting third parties would be wise to ensure that the third party has sufficient assets to meet any contribution claim or, more likely, that appropriate insurance is in place.