Libel and Facebook videos: High Court considers importance of context

April 22, 2020

The High Court has considered a claim for libel for videos posted on Facebook in Hijazi v Yaxley-Lennon [2020] EWHC 934 (QB). The claimant complained about two videos that were posted on Facebook by the defendant. Both videos were self-recordings showing the defendant addressing his remarks directly to the camera. The claimant’s case was that the First Video and Second Video were “viewed directly” respectively over 850,000 and 100,000 times.

The Defendant admitted publication of the videos, that they defamed the Claimant at common law and that their publication had caused serious harm to the Claimant’s reputation. The issue at the hearing was the meaning of the two videos. 

Previous case law has emphasised the importance of the medium of publication and context when assessing meaning as well as providing guidance where the publication complained about was viewed rather than read.

Case law also establishes the principle that a defendant relying upon a truth defence is required to prove the substantial truth of the sting of the allegation. That case law was not relevant to a determination of meaning; rather the cases established the correct approach to the assessment of a truth defence.

It was argued by the defendant that the two videos ought to be watched in the context of each other. However, the claimant had treated the two publications as separate. The judge pointed out that there might be an overlap between those who watched the First Video and then watched the Second Video, but that was not necessarily so. Some people may only have watched the Second Video. The First Video was not pleaded as providing context for the Second Video and the defendant did not in fact, argue that the meaning of the Second Video would be different if the hypothetical viewer also watched the First Video.

The context will include (a) matters of ordinary general knowledge; (b) matters that the publisher put before the reader/viewer. The second category has provoked some discussion in earlier cases as to the limits of what can properly be regarded as having been put before the reader, in particular hyperlinks in the text complained of. 

Whether the material strictly extrinsic to the words complained of could properly be considered as context required an assessment of several factors. This assessment is highly fact specific, but there are limits to what can properly be considered by the Court as “context” when assessing a natural and ordinary meaning. 

First, if a party wishes to rely upon particular matters as “context” then they must be pleaded. It is not acceptable to introduce matters as alleged “context” in a skeleton argument for a preliminary issue trial. 

Second, there is the distinction between material that would have been known (or read) by all readers and material that would have been known (or read) by only some of them. The former is legitimately admissible as context in determining the natural and ordinary meaning; the latter is relevant only to an innuendo meaning (if relied upon).

Newspaper articles, by way of example, rarely require pre-existing knowledge on the part of the reader. As a matter of reality, the readership of a daily newspaper will fluctuate day-to-day, as will the articles any reader will choose to read, whether online or in hardcopy. Therefore, the assessment of the natural and ordinary meaning is what the article means when read on its own, applying the well-established principles from case law. In the case of a series of published articles, if the claimant (or defendant) contends that the meaning of the subsequent articles(s) is altered if the reader has read the earlier article(s) (or has knowledge of other extrinsic facts) then that it usually a strong indication that it is an innuendo case and not a matter of “context”.

The judge’s immediate impression having watched the Second Video for the first time was that this was very much a follow up video that sought to advance a wider argument. It was impossible to seek to insert a specific meaning relying upon a separate earlier publication as “context”. The two videos were separate publications.