Insights High Court strikes out defence of truth, honest opinion and public interest in relation to series of tweets


The well-known TV presenter Rachel Riley issued proceedings for defamation against Michael Sivier, a political journalist and disability campaigner, in relation to an article published on Mr Sivier’s website, Vox Political – politics for the people, on 26 January 2019, headlined “Serial abuser Rachel Riley to receive ‘extra protection’ – on grounds that she is receiving abuse”.

The dispute arose in the Twittersphere. Its backdrop was the debate about antisemitism and the Labour Party. Mr Sivier’s website broadly supported Mr Corbyn politically. Ms Riley is Jewish and had spoken out publicly with concerns over Labour’s handling of antisemitism, and about antisemitism more generally. The Twitter dispute also involved a user identifying herself online as 16-year-old Rose, sympathetic to Mr Corbyn and a newcomer to the antisemitism debate.

At a trial of preliminary issues in December 2019, Mr Justice Nicklin held that the statement complained of meant that Ms Riley had engaged upon, supported and encouraged a campaign of online abuse and harassment of a 16-year old girl, conduct which had also incited her followers to make death threats towards her. This was a statement of fact. Other meanings, including that Ms Riley was a serial abuser who had acted hypocritically, recklessly, irresponsibly and obscenely, were held to be expressions of opinion. The meaning as a whole was found to be defamatory at common law.

In light of this, Mr Sivier filed a defence of: (i) truth in relation to the statement of fact; (ii) honest opinion; and (iii) publication on a matter of public interest (ss 2 to 4 of the Defamation Act 2013). Mr Sivier’s defence of truth particularised a number of tweets: a direct exchange of tweets between Ms Riley and Rose, other tweets by Ms Riley, and tweets by third parties to or about Rose. Mr Sivier argued that, taken all together, they constituted a course of conduct by Ms Riley amounting to a campaign of abuse and harassment of Rose. Ms Riley applied to strike out the defence in its entirety.

Examining the tweets, Her Honour Mrs Justice Collins Rice found that there was no arguable truth in Mr Sivier’s claim that Ms Riley’s tweets in the exchange with Rose, as a matter of fact, showed her engaging in a campaign of online abuse and harassment of Rose. She said that it was plain beyond any argument that Ms Riley was responding to a direct challenge from Rose to explain herself and her point of view, and that she had done so in a measured and civil fashion well within the accepted norms of online discussion on Twitter. Further, Rose’s reaction was cordial, engaged and self-possessed and she herself acknowledged that the conversation had been “amicable”. Therefore, the conversation with Rose could not be objectively described as anything other than a straightforward, rational and respectful exchange of views. Mr Sivier was entitled to disagree, but his pleaded objections were not sustainable as a factual description of Ms Riley’s speech on its face. There was no basis on which the conversation could be capable of demonstrating the truth of the strong allegations made in Mr Sivier’s article.

As for whether Ms Riley’s general tweets showed her engaging in a campaign of online abuse and harassment, HHJ Collins Rice noted that they were not directed to Rose personally, but were general Twitter comment. She said that it was clear that Ms Riley’s principal concern had been with antisemitism in general and the bullying expression of it towards herself in particular. It amounted to personal perspective only. Mr Sivier might not agree with any of it, but it was not arguable that this personal defence in response to the bullying narrative was itself prime evidence of that narrative.

HHJ Collins Rice concluded that Ms Riley’s tweets, by themselves but taken as a whole and in context, could not arguably sustain a defence of the truth of Mr Sivier’s allegations of fact with a realistic prospect of success at trial.

HHJ Collins Rice then considered Ms Riley’s tweets as part of an overall course of conduct that included the conduct of third parties and whether Ms Riley could, at least arguably, be held responsible for such overall conduct.

From the material in Mr Sivier’s pleadings, HHJ Collins Rice accepted that Rose would give evidence that she had felt abused and harassed online by a number of people sharing a particular viewpoint within the debate. The objective issue HHJ Collins Rice had to consider, however, was whether it was a sustainable proposition of fact that Ms Riley engaged upon, supported and encouraged a campaign to that effect. This had to be more than inadvertence.

Mr Sivier argued that Ms Riley had made “deliberate and calculated omissions” that were intended to and did support and encourage the actions of others. In other words, he said there was a causal connection between what Ms Riley did not do and what others did.

Ms Riley had more than 600,000 Twitter followers, but the mere fact of followership did not establish condoning, HHJ Collins Rice said. Further, the “bullying Rose” story had independent origins and a life of its own. The fact that, during the course of the Twitter exchange with Rose, Ms Riley had removed Rose’s Twitter handle from quoted material to protect her, and had said that her principal concern was not with Rose and that others should not target her, also had to be taken into account.

HHJ Collins Rice found that celebrity status, and a large Twitter followership, doubtless afforded opportunities for role-modelling and influence, but “omission” to take those opportunities to champion the vulnerable and condemn the intemperate, was not, even arguably, tantamount to supporting or encouraging online harassment. Celebrities are responsible for what they say on Twitter, but they are not responsible for the Twittersphere simply by entering it, nor for Twitterstorms which others choose to generate around them. Accordingly, Ms Riley’s “omissions”, as alleged by Mr Sivier, were not an arguable component of a course of conduct by her capable of establishing the truth of the allegations made by Mr Sivier in his article.

HHJ Collins Rice concluded that Mr Sivier did not have an arguable case with a realistic prospect of success that it was substantially true that Ms Riley had engaged upon, supported and encouraged a campaign of online abuse and harassment of Rose. In those circumstances, HHJ Collins Rice said that it was neither fair nor in the interests of justice for a proposed defence of substantial truth to proceed to trial.

As for the defamatory expressions of opinion, the supporting facts pleaded were the defamatory allegations, and Ms Riley’s own complaints of others’ speech and threats against herself. The opinion expressed by Mr Sivier, i.e. that Ms Riley was a serial abuser and had acted hypocritically, recklessly, irresponsibly and obscenely, had in any event been ruled to be an opinion attached to the assertion that this was by virtue of her having done, in fact, what he had alleged.

HHJ Collins Rice said that if it was not even arguably true that Ms Riley had engaged in or encouraged and supported a campaign of online abuse and harassment of Rose, opinions based on the fact of her having done so could not themselves survive to be defended either. The expressions of opinion were not coherently severable from the allegations of fact. If Ms Riley did not engage in, encourage or support a campaign of online abuse and harassment of Rose, there was no survivable basis in these pleadings to defend an opinion that by so doing she was a serial abuser etc.

The same was true for the public interest defence. There could be no reasonable belief in the public interest in publishing untrue allegations and unsustainable opinions without some clear explanation and justification of which there was none.

Accordingly, Ms Riley’s application to strike out Mr Sivier’s defence succeeded insofar as it pleaded defences under ss 2 to 4 of the 2013 Act. (Ms Rachel Riley v Mr Michael Sivier [2021] EWHC 79 (QB) (20 January 2021) — to read the judgment in full, click here).