Nicklin J handed down judgment for the claimant on 19 December 2018 in the matter of Monir v Wood 2018 EWHC 3525 (QB). Whilst providing further analysis of the various elements of libel law following the implementation of the Defamation Act 2013, this case considered how the law of agency applies to libellous posts published on social media platforms.
Brief facts
On 4 May 2015 and days before a general election, the UKIP Bristol branch published on its Twitter account @BristolUKIP a post which carried a picture of Sarah Champion, the Labour MP for Rotherham, together with two men; one of which was the claimant. Its accompanying text read:
‘Sarah champion labour candidate for Rotherham stood with 2 suspended child grooming taxi drivers DO NOT VOTE LABOUR’
The allegation against the claimant was completely false.
Steve Wood was the Chairman of the branch at the material time and was the 2015 UKIP candidate for Bristol South. Mr Wood had set up the branch’s Twitter account but, from May 2014, operation of it had been delegated to John Langley, then Vice Chairman of the UKIP branch.
In the run-up to the election it was Mr Langley’s responsibility to post material on behalf of UKIP and Mr Wood. There were no written rules, but Mr Wood had given instructions that no racist posts were to be published. These instructions were not enforced; Mr Langley had used the branch’s social media accounts to publish racist posts in February and March 2015.
Without instruction from Mr Wood, Mr Langley published the post of 4 May 2015.
Agency
The court had to determine whether the defendant could be considered legally responsible for the publication of the post. The claimant’s case was that Mr Langley was acting as Mr Wood’s agent. In answering this question, Nicklin J noted that few cases directly consider the issue of liability for defamatory publications by an agent.
Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Company of Australia Ltd was considered as authority for the proposition that:
‘the principal is liable for the actions of the agent when the function entrusted is that of representing the person who requests his performance in a transaction with others, so that the very service to be performed consists in standing in his place and assuming to act in his right and not in an independent capacity’[151].
Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19 was noted as authority for the proposition that in a case where agency forms a key part of the case, the conduct complained of must have been undertaken by the agent for the purpose of or in the course of executing the task delegated by the principle.
Nicklin J then stated:
‘What if the agent acts beyond the authority given by the principal? In my judgment the authorities make clear that, in relation to liability for defamatory publications of the agent, where the agent has been delegated the task of sending out publications on behalf of the principal, it is no answer if the agent breaches an instruction given by the principal not to publish certain material’ [160]. In concluding the position on agency, Nicklin J stated that ‘in my judgment Mr Langley was quite clearly acting as the agent of Mr Wood when he was posting material on the Bristol UKIP Twitter account, including the 4 May Tweet’ [161].
Principally, the reasoning for this decision was that, whilst Mr Wood had delegated the day-to-day operation of the Twitter account to Mr Langley, he had retained a degree of control over it. The Twitter account was registered with Mr Wood’s e-mail address, which provided him with access to the account at any point, which also enabled the ability to take back the day-to-day running of the account or alter the password. Mr Wood was also the Chairman of the branch with authority over all its functions.
Moreover, Mr Wood had actively chosen not to monitor Mr Langley’s social media posts after delegating the authority to him to run the social media accounts, with the knowledge that one of the main campaigning aims of the branch was to seek to highlight that the Labour Party had been in control of Rotherham Council when the child sexual exploitation scandal took place (what the judgment considered to be UKIP’s “Rotherham Message”).
Finally, the post published on 4 May was done so not in Mr Langley’s personal capacity but in performance of the role delegated to him by Mr Wood and with the purpose of disseminating the “Rotherham Message”.
Nicklin J considered that: ‘Mr Wood cannot escape liability because Mr Langley acted against the general prohibition on publication of material that was an attack on others. He was acting within the scope of the job that had been delegated to him by Mr Wood’ [161].
Remedy
Mr Monir received £40,000 in damages. Although the level of publication was considered minimal, Mr Wood had refused to publicly apologise and withdraw the allegation.
The effect that the defamatory post had on Mr Monir’s quality of life was well recognised in the judgment; in an unusual step, it was noted that had the libel been published in a national newspaper, the claimant could have expected to receive an award of at least £250,000.
The Solicitor’s view:
Jeremy Clarke-Williams, Partner at Penningtons Manches commented “This was an interesting and unusual libel case in that it was never contended that the appalling allegation published about Zahir Monir in the Tweet complained of was true. The focus of the action was about liability for publication. The reputational damage, stress and embarrassment caused to Mr Monir was severe and it was of critical importance to him to vindicate his reputation. However, he could not have contemplated legal action without the availability of conditional fee agreements with my firm and Julian Santos of counsel, and the protection of after the event insurance. Temple had to be resolute during the proceedings because the defendant’s legal team approached them directly urging withdrawal of the ATE cover, and subsequently pursued an application for security for costs against Mr Monir”. The judge commented that Mr Monir “..has been forced to fight a libel claim all the way through to trial with every single conceivable point being taken against him” but ultimately the judgment provides the full vindication he deserved.“
Conclusion
This case highlights how the law of libel is adapting to the use of social media and provides an example of how an individual or corporate who sets up a social media account but delegates authority for posts to be published on its behalf by others, could be held liable for any potential libel claims.
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