Katie Hopkins has been ordered to pay £24,000 in damages and, reportedly, hundreds of thousands in costs, following defamatory tweets about food blogger and writer Jack Munroe.

The judgment handed down on 10 March 2017 in Jack Monroe v Katie Hopkins [2017] EWHC 433 QB was particularly significant given this was the first time that the ‘serious harm’ test under the Defamation Act 2013 had been applied to tweets.

The Law

On 1 January 2014, the Defamation Act 2013 (the “Act”) came into force in England and Wales.  The act codified and in some respects reformed the English law of defamation –libel and slander. Libel is applicable to publications in permanent form including newspapers, TV, radio, books and on the internet; slander is concerned with the spoken word, conduct and other non-permanent expression. Section 1 of the Act introduced the "serious harm" requirement. This introduced a new hurdle for persons and businesses wanting to bring a claim for defamation./’/

Under Section 1(1) a statement is not defamatory of an individual "unless its publication has caused or is likely to cause serious harm to the reputation of [that person]".

Under Section 1(2), where the party affected by the statement is a body that trades for profit, it must show that the publication of the statement has caused or is likely to cause the body "serious financial loss".

The serious harm requirement acts in addition to the prior requirements for a defamation claim under the common law. Therefore, in order to be defamatory, a statement must also make the claimant identifiable (whether explicitly or not) and carry a meaning that adversely affects the attitude of other people towards the subject. To found a successful claim, the statement must also of course be false (on the balance of probabilities).

The Facts

In 2015, Hopkins tweeted to suggest food writer Ms Jack Monroe condoned how a war memorial had been defaced during a protest.  On realising she had confused her with journalist Laurie Penny, who had said she didn’t have a problem with some rather choice wording being spray painted on the Whitehall memorial commemorating women in the Second World War, Hopkins deleted the tweet.  Despite deleting the original tweet Hopkins failed to apologise to Monroe or retract the statement.  Later that same day, Ms Hopkins tweeted:

Ms Monroe claimed that (i) Hopkin’s first tweet suggested that she had either vandalised a war memorial, which was a criminal act, or condoned or approved that vandalisation; and (ii) that the second tweet bore a defamatory innuendo meaning that she approved or condoned that vandalisation.  She argued that both Tweets had caused her serious harm pursuant to section 1 of the Defamation Act 2013.

The court held that tweets made by Katie Hopkins about Jack Munroe were defamatory. The 'serious harm' test was satisfied, it was said, 'on the straightforward basis that the tweets complained of have a tendency to cause harm to this claimant's reputation in the eyes of third parties, of a kind that would be serious for her' and the High Court ruled the tweets had caused Monroe “real and substantial distress” and, as such, she was entitled to “fair and reasonable compensation”.

Hopkins has said she “may” appeal the verdict, saying, if she did, her lawyers would argue the tweets were not damaging enough to Monroe’s reputation to constitute defamation.

Summary

There are no hard and fast rules to determine what will constitute ‘serious harm’ but it is clear that evidence of actual harm, or the likelihood of actual harm, will be considered by the court in some detail.  On deciding whether a claimant has suffered ‘serious harm’ each case will turn on its own facts. 

Given the number of social media platforms and the ease with which we can all now become a ‘publisher’ of offending material, careful consideration should be given to the publication of material as libel law continues to develop in a way that keeps a pace with technological advances and new ways of communicating.