High Court Success for Litigation Team - Think before you Tweet

Our highly recognised Litigation Team has enjoyed more success for clients in the High Court following clients being the subject of defamatory tweets and facebook postings.

Defamatory Comments on Social Media

Social media is a great medium for people and society in general, but it is a uniquely effective breeding ground for potentially libelous statements. Postings are often made with little forethought or planning and in fits of anger and frustration – they can be deleted, but very often not before they have been seen and noted by a multitude of other users.

Countless people have learned to their dismay that the internet allows people to speak their mind far too easily - It is full of interesting places where someone could intentionally or accidentally leave potentially defamatory comments or posts.

Just a few of these locations are:

• letters to the editor of local newspapers
• public comments on media (i.e., newspaper or magazine) web sites
• blogs and comments to blog postings
• social media like Facebook, Linkedin, and Twitter
• chat rooms or list servers.

While some web sites screen posts for inflammatory or illegal content, the screening systems are not geared to examine every post for defamatory content, and so many questionable postings end up online.

People may be of the opinion that any postings they make are simply their opinion, but they will probably be seen by many readers as statements of fact and so believed and passed on to others.

Injunction

Our Litigation Team immediately commenced High Court proceedings seeking an injunction, damages and costs against a former employee of our client who posted highly defamatory remarks that could be seen publically, on both Twitter and Facebook, about our client and one of their employees. The Court accepted that that the words used on the postings were likely to cause a serious financial loss to our client  – the response to the Facebook posts by other users illustrated that statements had been taken at face value.  

The Defendant has been ordered to permanently delete three defamatory tweets and nine defamatory Facebook posts. The Defendant must also refrain from publishing or causing to be published any other online posts of this nature about our client and their employee. Significant damages and costs were also awarded.

If you have been the subject of defamatory on line comments, there is a real need to act quickly – we can offer the support and guidance necessary in these stressful and upsetting circumstances. The Litigation team have the resource and experience required to secure urgent injunctions at short notice.

For those who wish to post something online that can be widely viewed, you need to give it some serious thought first. Once you have clicked “send,” you can’t take it back.

If you need advice or guidance on the matter please contact our litigation team on 01603 666001 or email ph@rogers-norton.co.uk.

Nancy and others

The High Court has recently thrown out a libel claim brought by Nancy Dell’Olio against the Daily Mail. A double page spread under the catchy heading “Return of the Man Eater” referred to her relationship with Sir Trevor Nunn.

In any libel claim the Claimant has to specify the allegedly defamatory meaning contained in the words used.  The Claimant’s first attempt was that they meant she is “a serial gold digger and has deliberately set out to snare herself a wealthy man by making their adulterous affair public thereby destroying his marriage for her own personal gain”.   Since the article had itself pointed out that Sir Trevor Nunn’s marriage had already broken down and that it was him pursuing her, not the other way around, that alleged meaning was abandoned in favour of “a serial gold digger who cynically seeks out relationships with men not for genuine emotional reasons but because they are millionaires and therefore capable of funding her conspicuously lavish and ostentatious lifestyle”.

A libel claim can only go forward for decision by a jury if the judge holds that the article was at least “capable of substantially affecting (or tending to affect) in an adverse manner the attitude of other people towards this Claimant”. The article must be read in a reasonable, not strained, way, and read as a whole – not just the headline and not cherry picking out of context.  It is not enough to say that by some person or another the words might be understood in a defamatory way.  The judge has to borrow the mindset of the hypothetical reasonable reader who is taken be representative of all likely readers of the publication.

I always smile at the Court’s approach to this notional being. He is “not naïve but he is not unduly suspicious. He can read between the lines. He can read an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available”.

The Court’s Decision

The Judge found the article “unflattering and even insulting”- but held that the references to lifestyle, money and wealth did not pass “the threshold of seriousness required if a publication is to be capable of being defamatory”. The article was simply not capable of bearing any defamatory meaning, and there was no further decision to be made on this at a full jury trial.

Comment

The case is a useful insight into the judicial approach to the world of celebrity spats, and the workings of the filters built into the litigation process. Not every aggrieved celebrity is always entitled to take her case all the way to a costly trial. Both the defendant (even the Daily Mail) and the public purse need protection from the continued pursuit of litigation which is doomed to fail.

For further information in connection with our libel and commercial disputes practice and the possible use of Conditional Fee Agreements in these areas please contact John Cadywould on 01603 675629 or at jbc@rogers-norton.co.uk.

Guarantor’s signature not all that it seems

A recent High Court decision has given a helpful reminder of how a signed and witnessed Guarantee may not be worth the paper it’s written on.

This was on the basis of “undue influence” and because the defendant had not intended to sign a guarantee - the defence of “non est factum”.

• Undue influence - where a relationship exists between two parties with “trust and confidence, reliance, dependence or vulnerability on the one hand, and ascendancy, domination or control on the other”.
• Non est factum - where the document was fundamentally different to what the Defendant intended to sign; and crucially that he had not himself been negligent in connection with this.

That second hurdle generally trips you up if you simply sign a document without reading it first.

The Backgound

The Defendant had been a company director. He often witnessed the signatures of fellow directors on Leases. He had to resign from the board but was kept on as an employee.

 

The company’s landlords knew that the company was in difficulty and were insisting on a personal guarantee by a director of the company before granting a new Lease.

 

One of the remaining directors of the company got the Defendant to sign the guarantee page.

 

The Court’s decision

 

There was a presumption of undue influence. As an employee he should not have been asked to sign the guarantee until he had either taken or clearly rejected an opportunity to take independent legal advice.

 

Crucially the Court held that the landlord was deemed to be aware -had “constructive knowledge” -of the undue influence. It knew that the company was in trouble yet failed to carry out checks to ensure that the Defendant was aware of the risks.

 

For good measure the Court was also satisfied that the Defendant had been tricked into signing as a guarantor thinking that all he was doing was witnessing somebody else’s signature. In view of the history of him witnessing signatures the Court held that he had not been negligent. The “non est factum” defence therefore also succeeded.

 

And the message?

For those intending to take personal guarantees - follow the guidance laid down in Court decisions; that will generally require the involvement of lawyers.

The narrow message for those who have signed guarantees is that the circumstances can in some exceptional cases provide a defence; of course the best advice is still never to sign any document without reading and understanding it first.

If you would like to discuss this article, or any other matter relating to disputed guarantees or other contract issues please contact John Cadywould on 01603 675629, or e-mail jbc@rogers-norton.co.uk.