The High Court sitting in the Queens Bench division recently rejected an application by the defendant, Modi, to order a trial on the extent to which the tweet the subject of  the action was read in jurisdiction.  The Defendant applicant argued that issue was relevant to both liabilityand damages. The  High Court ruled that numbers of readers alone was not decisive.

Facts

An expert giving evidence on behalf of Modi estimated that only 35 people viewed the message.  The Defendant argued that, as in Yousef Jameel and Dow Jones , the damage from any libel case would be so small as to be not warrent proceeding and so any case would be an abuse of the court process.

There was conflicting evidence as to extent of publication (see [19] – [ 22]). Cairns’ expert estimated the audience for the tweet to be around 100, by looking at the number of Modi’s followers in the court’s jurisdiction. While Cairn’s counsel accepted that not all of Modi’s followers would have seen the tweet directly, it was argued that some people would have received a communication of it by other means.

Decision and reasoning

Mr Justice Tugendhat found that the number of people who saw the message was only one of a number of considerations in a defamation case. He found at  [34]:

In any event, the Jameel type of abuse of process does not depend on numbers alone.  [Cairns] has resided in this jurisdiction in the past, and expects to return to live here again. There have been recent cases in which the court has declined to strike out claims based on a direct communication to a single publishee.

Mr Justice Tugendhat said that a real threat in a case such as this was that the statements at the centre of the libel claims might be more widely disseminated, and that the measure of the damage to the allegedly libelled person is about more than just the number of people who saw the original post.  His stated at [43]:

A claimant’s primary concern in a libel action is vindication, not damages for what has been suffered in the past.  So the damage that has occurred before the action is brought may not give an indication of the importance of the claim.  Vindication includes a retraction, or a verdict for the claimant, or a judgment to the effect that the allegation complained of is false. If one of these is achieved, then it may be unnecessary to pursue a further remedy by way of injunction.  So a claimant can legitimately and reasonably pursue a claim where the publication that has already occurred is limited, when his purpose is to prevent, or at least limit, further publications to a similar effect being made in the future. But that is subject to there being be a real prospect of further publication if the action is not pursued. A retraction or judgment in favour of a claimant can be expected to have the effect of preventing or limiting republication, even if a claimant is not asking for an injunction.

The court was not prepared to rule on issues of fact at a preliminary hearing, and that the substantial hearing would be the place for such issues to be decided.

Issue

Publication of defamatory statements by twitter throws up interesting issues of the extent of readership.  Some twitter accounts are heavily subscribed.  Most are not.  Where the readership is very limited the defence of section 33 of the Defamation Act 2005 (Vic) may be available.   It provides:

It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.

As Justice Tugendhat found the number of those following a twitter account, the readership of the publication, is not a decisive factor.