Stocker v Stocker [2019] UKSC 17

Nicola Stocker told her former husband’s new partner on Facebook that he had “tried to strangle” her. The Supreme Court held that an ordinary reader would understand that as a violent grip on the neck, not an attempt to kill, and that the trial judge had been wrong to let dictionary definitions decide the point. On that meaning her defence of justification succeeded, and her appeal was allowed.

The Facebook exchange

During a Facebook exchange, Mrs Stocker told her former husband’s new partner that he had tried to strangle her. The dispute concerned what an ordinary reader would understand by that phrase in the context of the exchange.

Mr Stocker sued for defamation. He said that “tried to strangle me” meant he had tried to kill her, and that the other statements implied he was a dangerous and thoroughly disreputable man. Mrs Stocker said that, spoken of domestic violence, the words meant he had violently gripped her neck, inhibiting her breathing and putting her in fear of being killed. She also pleaded that the statements were substantially true and relied on justification.

The decisions below

Mitting J turned to the Oxford English Dictionary. “Strangle” was defined as killing by external compression of the throat, or as painfully constricting the neck or throat. He reasoned that “he strangled me” would have meant painful constriction, because Mrs Stocker was alive. “Tried to strangle” could not mean that, because marks on her neck showed that the constriction had succeeded. The reader must therefore have understood an attempt to kill. Read in that light, the other comments meant that he was dangerous, at least to any woman with whom he lived or had lived. That, the judge held, was defamatory.

The trial judge found that Mr Stocker had grasped Mrs Stocker’s throat and applied force. He did not find an intention to kill. Those distinct findings made the meaning of the Facebook post decisive.

Justification partly succeeded on the facts and failed on the sting. The judge found at least a common assault, three arrests, “gun issues”, and threats, though not of immediate violence. He held that this did not meet the impression that Mr Stocker was a dangerous man. The posts were a significant and distorting overstatement.

Sharp LJ considered that dictionaries should not be used to determine natural and ordinary meaning, but that no harm had been done: the judge had used the dictionary as a check, and his reasoning was sound. The description of Mr Stocker as dangerous was, she said, only his overall characterisation of meanings already found. Because the attempted-killing meaning stood, section 5 of the Defamation Act 1952 could not help. A common assault and an attempt to kill by strangulation were materially different.

Meaning on social media

Lord Kerr, with whom the other members of the Court agreed, held that Mitting J had made an error of law. He had consulted the dictionary before argument and had treated its two definitions as the possible meanings, not as a later check. Meaning is fixed by how the ordinary reasonable reader would understand the words in context, not by a technical dictionary definition.

The result was anomalous. “He strangled me” became the lesser allegation, while “he tried to strangle me” was treated as attempted killing, because the judge read “try” as “try and fail”. That is not ordinary usage. The words had to be taken together. It was also wrong to parse a Facebook post as if it were a carefully drafted document. Lord Kerr agreed with the approach in Monroe v Hopkins, Monir v Wood and Smith v ADVFN plc. Readers of Facebook scroll quickly, take an impression and move on. They do not have someone beside them testing alternative meanings. The court must stand in the place of that reader. Where several meanings are plausible, the single meaning rule requires the court to choose one. The rule is artificial, but neither party asked the Court to depart from it, and the court need not choose a non-defamatory meaning merely because one is theoretically available.

The meaning and the defence

The judge’s meaning could not stand. The Supreme Court decided it rather than remit the case. Knowing that Mrs Stocker was alive, the ordinary reader would have understood that Mr Stocker had grasped her by the throat and applied force to her neck, not that he had tried to kill her. If that had been her allegation, she could have said so. Lord Kerr saw no basis for the further meaning that Mr Stocker was a danger to any woman with whom he might live.

He emphasised that an appeal court should not lightly replace a trial judge’s meaning. Meaning is a finding of fact, and disciplined restraint is required where the chosen meaning is within the reasonable range. Here the meaning had been reached by a legal error, so the Court of Appeal should have started again. It had not.

Section 5 of the Defamation Act 1952, later replaced by section 2(3) of the Defamation Act 2013, then became central. Where words contain two or more distinct charges, justification does not fail only because every charge is not proved, if what is unproved does not materially injure the claimant’s reputation in light of what is proved. Lord Kerr said it was beyond dispute that Mr Stocker had grasped his wife’s throat tightly enough to leave red marks still visible two hours later. It was not disputed that he had breached a non-molestation order, and it had not been said that he had made no threats. Many would consider that enough to show he was a dangerous and disreputable man, the justification Mrs Stocker sought. Even if every allegation was not proved to the letter, section 5 was satisfied.

Verdict: The Supreme Court unanimously allowed Mrs Stocker’s appeal. In context, her words conveyed that Mr Stocker had grasped her throat and applied force. The trial findings were sufficient for the defence of justification.

Source: Stocker v Stocker [2019] UKSC 17