Sticks, stones and the Streisand effect
- By James Ferguson
Slander is spoken. Libel is written. Both are defamatory.
Sticks and stones may break my body, But words can tear me apart
The plaintiff requires little introduction: she was the First Minister of Northern Ireland, Arlene Foster. The defendant is Dr Christian Jessen, a medical practitioner, author and a “television celebrity” known for “Embarrassing Bodies” and “Supersize vs Superskinny”.
In December 2019, rumours were circulating over the plaintiff’s private life. The defendant published a Tweet containing a defamatory statement on the subject. At that time, Dr Jessen had over 300k followers on Twitter.
23 December 2019
“Rumours are bouncing around that the DUPs Arlene Foster has been busted having an affair. Isn’t she the ‘sanctity if [sic.] marriage’ preaching woman? It always comes to bite them in the arse in the end. Rather satisfying for us gay boys who she made feel even shittier….”
24 December 2019
“I am putting Dr Christian Jessen on notice in relation to a totally false allegation he has tweeted regarding DUP Leader and former NI First Minister, Arlene Foster. Legal action will also be taken against any persons who have retweeted this highly defamatory allegation.”
25 December 2019
26 December 2019
“People are now comparing me to @BarbaraStreisand – this gay boy’s life CANNOT GET ANY BETTER!!!”
The Streisand effect is said to occur when an attempt to hide, remove or censor information has the unintended consequence of further publishing that information. It is not clear whether this was within the knowledge of the defendant.
2 January 2020
A letter of claim was issued by the plaintiff’s solicitor.
6 January 2020
A screengrab of the defendant’s Twitter page showed the offending tweet had been retweeted 517 times with c. 3.5k likes. It was then deleted by the defendant.
7 January 2020
The defendant responded to the letter of claim by email:
“I received your letter which was sent to a general clinic e-mail address when I visited the clinic today. Whilst I do not agree with the suggestion that my tweet gives rise to a claim in defamation, I confirm that I have removed it from my account without any admission of liability and have no intention to re-publish it. I trust this resolves the matter.”
9 January 2020
The plaintiff’s solicitor responded demanding the publication of “a comprehensive retraction and apology”, damages and costs. He further confirmed that proceedings were being drafted.
28 January 2020
In the absence of any response, proceedings were issued.
4 February 2020
A process server served the proceedings at the defendant’s home address by handing them to the concierge.
9 March 2020
A further copy of the proceedings was posted to the defendant’s home address.
13 October 2020
Default judgment was served on the defendant by both first-class post and email.
16 October 2020
Default judgement was served by hand to the concierge at the defendant’s address.
22 January 2021
Application for assessment of damages served on the defendant by both first-class post and email.
24 January 2021
Application for assessment of damages served by hand to the concierge at the defendant’s address.
29 January 2021
Application for assessment of damages listed for Review.
11 March 2021
Plaintiff’s solicitor wrote to the defendant by first-class post advising that assessment of damages listed for hearing listed.
12 April 2021
Trial bundle delivered to defendant’s address by a process server.
14 April 2021
The plaintiff began her evidence to the High Court.
16 April 2021
Defendant’s solicitor contacted the Court Office.
19 April 2021
Application by defendant’s solicitor to enter a late appearance.
23 April 2021
Defendant gave evidence to the High Court.
On the question of service of proceedings, Mr Justice McAlinden did not find the defendant to be a credible witness.
Dr Jessen was adamant that the concierge… who he knew to be efficient and conscientious, did not provide him with the material that had been delivered by [the process server]. I simply do not accept this evidence. I am satisfied that a dependable and reliable concierge service would have ensured that Dr Jessen was provided with the documentation… and that Dr Jessen chose to take no steps in response to that documentation and only belatedly chose to respond to the writ and notice of writ when these were subsequently posted to him and this belated response took over 7 weeks from the date on which the documentation was posted to him.
On the substance of the offending tweets:
These tweets were utterly baseless and they were very upsetting and hurtful and the plaintiff’s immediate reaction was not to do anything which would raise the profile of these tweets in an effort to protect her children in the run up to Christmas.
The conduct of the defendant, notably his “lol” response to the plaintiff’s solicitor “… constitute[d] significantly aggravating features in this case.”
Assessment of Damages
I consider that the appropriate award is £125,000. In terms of proportionality, I look to the latest edition of the Green Book and I note that the guidance in respect of the range of compensation for the total loss of one eye is £80,000 to £140,000. Damages for female infertility: up to £150,000. Bladder, complete loss of natural function and control: £125,000 - £170,000. Total or effective loss of one hand: £85,000 - £145,000. Amputation of 1 foot: £150,000 - £250,000. Having considered the guidance contained in the Green Book (2018), I am satisfied as to the proportionality of the award in this case.
The plaintiff was awarded costs on an indemnity basis.
The late representations made on behalf of the defendant smacked of a plea in mitigation rather than any tangible defence. His conduct aggravated matters.
Comments made on social media are not exempt from libel laws. The propensity to “pile on” merely disseminates the libel further. To tweet is to publish. To re-tweet is to republish:
Think before you tweet. Re-think before you re-tweet.