In Stocker v Stocker [2018] EWCA Civ
170, a former wife, Nicola Stocker, became a Facebook friend of her ex-husband’s new partner, Deborah Bligh. The ex-wife’s motives do not seem to have been entirely friendly. While the unappetising details of the case and the alleged defamation add little to the law, the ruling on the status of the postings does shed a little light on the way in which Facebook postings are to be treated.
Nicola Stocker sent a friend request to Deborah Bligh and it was accepted. A few weeks later, Ms Bligh posted a status update on which Ms Stocker posted various comments focusing on the behaviour and character of her ex-husband. Exchanges between the two continued for over two hours. The trial judge found that Ms Stocker wanted to blacken her ex in the eyes of his current girlfriend and belittle her; Ms Bligh wanted to find out from the appellant about her new partner’s previous history.
Mr Stocker sued his ex-wife for libel. In amongst the arguments about meaning and the extent to which the comments were true was argument about whether the comments were published and whether the fact that Ms Bligh’s Facebook wall was set by her as open to friends meant that any defamatory publication was not Ms Stocker’s responsibility. Nicola Stocker’s case was that, while she knew that her comments in response to the Initial Status Update were public (to the extent that they would be visible to Ms Bligh’s Facebook friends), she believed that her later comments were private because the content of the second Status Update, addressed her directly, and the exchanges that followed it appeared in a different format on her telephone to the earlier exchanges that had taken place. The trial judge rejected that but accepted (‘perhaps generously’ according to the Court of Appeal) that neither party gave any thought to the fact that their exchanges were being conducted in a semi-public arena accessible to all Ms Bligh’s Facebook friends. In light of that finding, it was argued before the Court of Appeal that to found liability for publication, or republication there has to be a knowledge based test, alternatively a negligence based test, with the burden of proof on the claimant.
Two extracts from the Court of Appeal judgment of Sharp LJ (at [35] and [40]) clarify the position:
I do not accept that the publications with which this case was concerned were republications. As earlier indicated, the evidence about the workings of Facebook before the judge was extremely limited. Without venturing further than the evidence heard below permits, in my view, as the judge found, the posting of the Comments on Ms Bligh’s Facebook Wall was in reality no different in substance or in principle to the putting up of a notice on a conventional notice board, accessible to third parties. When the appellant posted her Comments on Ms Bligh’s Facebook Wall, they were instantly accessible to all of Ms Bligh’s Facebook Friends; and the appellant published her Comments (in the legal sense) directly to every third party who read on the Facebook Wall what she had posted there. There was no repetition of the Comments (by intervening third parties, to others) involved. The fact that the ‘notice board’ was an electronic, rather than a physical, one did not call for some fundamental realignment of the well-settled common law approach to this issue.
It seems to me that the various arguments raised for the appellant tend to divert attention away from some basic points: she 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 who else might see what she posted. It should be emphasised that the judge’s finding in this case was not that the appellant failed to appreciate that the Comments were accessible to others; still less that if she had thought about it, she would not have understood that the Comments were accessible. His finding was that she did not have this issue specifically in mind at the material time. There is nothing unjust so it seems to me, in holding that a defendant in these circumstances should be held to be responsible in law for publishing defamatory material to third parties. Nor is it unjust to require such a defendant to establish that care was taken to confine a publication to its intended target, if such a point can properly be taken on the facts. This was in essence the approach of the judge; and in my view it was one he was not wrong to take. In my opinion therefore, the judge did not err in law in determining that the appellant was responsible in law for publication.
