February 26, 2018

The Court of Appeal upheld the High Court’s decision that the defendant, Nicola Stocker, was responsible for publishing defamatory comments concerning her ex-husband, the claimant, Ronald Terence Stocker, on the Facebook wall of Mr Stocker’s new girlfriend.

Mr and Mrs Stocker had been married for 13 years, but divorced acrimoniously in 2012. These proceedings for libel arose from comments made by Mrs Stocker on the Facebook wall of Mr Stocker’s new partner, Deborah Bligh, on 23 December 2015. Initial comments were posted in response to a status update from Ms Bligh. The comments alleged, amongst other things, that Mr Stocker had been arrested for, as Mrs Stocker put it, “trying to strangle me”.

At first instance Mr Justice Mitting found that Mrs Stocker had published (in the legal sense) the words complained of to three individuals who she acknowledged had read the relevant comments. Mitting J also found that the words complained of were defamatory of Mr Stocker in the meanings relied on by Mr Stocker. He rejected the various defences contended by Mrs Stocker.

Mrs Stocker appealed the decision contending, amongst other things, that Mitting J had erred in law by finding her responsible for publication of the comments. She argued that the default position was that comments posted in response to a status update were visible to all of those Facebook user’s Facebook friends, but because it was open to a user to change those settings to restrict access to a Facebook wall, or take the comments down, he or she was “actively involved” in the publication of those comments. In those circumstances, it was appropriate to characterise the publication of such comments as a republication.

Lady Justice Sharp did not agree. The publications in this case were not republications. In her view, as Mitting J had found, the posting of the comments on Ms Bligh’s Facebook wall was in reality no different in substance or in principle to putting up a notice on a conventional notice board, accessible to third parties. When Mrs Stocker posted her comments, they were instantly accessible to all of Ms Bligh’s Facebook friends. Mrs Stocker therefore published her comments (in the legal sense) directly to every third party who read them on the Facebook wall. There was no repetition of the comments (by intervening third parties to others) involved. The fact that the “notice board” was electronic, rather than physical, did not call for some fundamental realignment of the well-settled common law approach to this issue, Sharp LJ said.

Sharp LJ concluded that Mrs Stocker was the originator of the libel: she was aware that the particular Facebook platform concerned was a semi-public one and she deliberately posted on that platform without thinking about whom else might see what she had posted.

Mitting J’s finding was not that Mrs Stocker had failed to appreciate that the comments were accessible to others or that if she had thought about it, she would not have understood that the comments were accessible, Sharp LJ said. His finding was that she did not have this issue specifically in mind at the material time. There was nothing unjust in holding that a defendant in these circumstances should be held to be responsible in law for publishing defamatory material to third parties. Nor was it unjust to require such a defendant to establish that care was taken to confine a publication to its intended target. This was, in essence, Mitting J’s approach, and it was one he was not wrong to take, Sharp LJ said. In her opinion therefore, the judge had not erred in law in determining that Mrs Stocker was responsible in law for publication. The appeal was dismissed. (Ronald Terence Stocker v Nicola Stocker [2018] EWCA Civ 170 (12 February 2018) — to read the judgment in full, click here).