Countdown’s Rachel Riley wins libel claim, but “provocation” cuts damages
It was a good end to 2021 for Rachel Riley of Countdown fame, as judgment was handed down in her favour in the libel case she brought against Laura Murray.
Ms. Riley is an outspoken critic of, and campaigner against, antisemitism in the Labour Party, and at 18.16 on 3rd March 2019, she retweeted a tweet from Owen Jones to her 625,000 followers, with the addition of the words “Good Advice” followed by two emojis - an egg and a red rose. The tweet she was retweeting read:
“Oh: I think an egg was thrown at him actually. I think sound life advice is, if you don’t want eggs thrown at you, don’t be a Nazi. Seems fair to me.”
The tweets followed Jeremy Corbyn being egged on a visit to a Mosque.
The reaction to Ms. Riley’s tweet was mixed, with some commentators saying she was implying that Mr. Corbyn deserved to be egged, and others believing that Ms. Riley was pointing out the hypocrisy of the situation.
In response to Ms. Riley’s tweet, Laura Murray, who was the Stakeholder Manager for the Leader of the Labour Party, tweeted the following at 21.03 the same day:
“Today Jeremy Corbyn went to his local mosque for Visit My Mosque Day, and was attacked by a Brexiteer.
Rachel Riley tweets that Corbyn deserves to be violently attacked because he is a Nazi.
This woman is as dangerous as she is stupid. Nobody should engage with her. Ever.”
Crucially, Ms. Murray’s tweet did not include the text of Ms. Riley’s original tweet and the substance of Owen Jones’ tweet. Ms. Murray had 7,252 followers at the time.
Back in April 2020, the High Court found that Ms. Murray’s tweet meant:
- Jeremy Corbyn had been attacked when he visited a mosque;
- Riley had publicly stated in a tweet that he deserved to be violently attacked; and
- by so doing, Ms. Riley has shown herself to be a dangerous and stupid person who risked inciting unlawful violence. People should not engage with her.
The Court found that the second and third of those meanings were defamatory, and whilst the second meaning was a statement of fact, the third was a statement of opinion.
The case proceeded to trial in May 2021, and both the Claimant and Defendant gave evidence to support their respective cases. The Judge noted that both of them were truthful in the evidence they gave and did everything they could to assist the Court.
In order to be succeed, Ms. Riley had to overcome the well-known ‘serious harm’ test – and on this fundamental issue, she was successful.
There was some argument about whether Ms. Riley had contributed to the harm caused by retweeting Ms. Murray’s tweet to her much larger group of followers just after midnight the same night. However, Mr Justice Nicklin found that even prior to Ms. Riley’s retweet, the threshold of serious harm had been passed. At midnight, Ms. Murray’s original post had 94 responses, 661 retweets, and 1764 likes.
Whilst that is not on the scale of a mainstream media post, it was clear that the post had significant publication, and Mr Justice Nicklin was content to assume that most people who retweeted or liked Ms. Murray’s tweet were accepting the factual allegation contained in it as true.
Ms. Murray attempted to defend the claim on the basis of truth, honest opinion, and public interest. She was unsuccessful in all three defences.
The truth defence failed on the basis that Ms. Riley’s tweet had two possible meanings, and Ms. Murray’s tweet stated as a fact that it had one meaning, which was a misrepresentation.
On this issue, Mr Justice Nicklin stated:
“The important point is that, in her choice of words, and particularly the decision not to include [Ms Riley’s tweet] in the post, the Defendant’s Tweet removed that important ambiguity. Instead, the Defendant pronounced what the Claimant had said….as a matter of fact. That decision led to the Defendant’s Tweet being published (and republished) to people who were therefore unaware that what they were being told was only one interpretation of what the Claimant had said…”
Ms. Murray failed in her honest opinion defence because she failed to prove the truth of the facts on which she based her opinion. Whilst we know that the honest opinion defence allows a “degree of latitude” in the extent to which a defendant needs to prove the facts on which an honest person could have held the opinion, “it does not provide an escape route for defendants who have expressed an opinion on stated facts they cannot prove to be true”.
Before we move on to the public interest defence, it is worth stopping for a moment. The preceding paragraph is exactly why the honest opinion defence is tricky - statements of opinion should not be waved through to publication with “oh, it is clearly opinion”. The truth defence is notoriously difficult to employ successfully and the need (albeit to a slightly lesser degree) to prove the factual basis for a statement of honest opinion makes the honest opinion defence almost as difficult to use successfully.
The public interest defence also failed, on the basis that although the statement was on a matter of public interest and the Defendant believed publication was in the public interest, the Defendant could not show that her belief was “reasonable”.
In coming to this conclusion, Mr Justice Nicklin referred to Ms. Murray’s decision not to include the substance of Ms Riley’s tweet in her own tweet. Leaving out the contents of Ms Riley’s tweet meant that readers of Ms Murray’s tweet could not see what Ms Riley had actually said, and therefore could not understand that Ms Murray’s tweet was based on her own interpretation of it. This was described as “a critical failure”.
Ms. Riley was awarded £10,000 in damages, which in terms of libel damages is a small amount. So, given the seriousness of the allegations made by Ms. Murray, why wasn’t the award greater?
It seems Mr Justice Nicklin had quite a conundrum when it came to deciding the amount of damages to award in this case. Whilst he specifically stated in his judgment that Ms. Riley was not guilty of bad conduct, he did characterise her tweet as “provocative, even mischievous”, going on to say:
“There is a clear element of provocation in [Ms Riley’s tweet], in the sense that the Claimant must have readily appreciated that the meaning of [her tweet] was ambiguous and could be read as suggesting, at least, that Jeremy Corbyn deserved to be egged because of his political views. In the context of her own high-profile campaign against anti-Semitism in the Labour Party, the risk of [her tweet] being read in that way should have been obvious. In that respect, the Claimant can hardly be surprised - and she can hardly complain - that [her tweet] provoked the reaction it did, including the Defendant’s Tweet. Those are matters which are properly to be taken into account when fixing the appropriate award of damages…”
So, there we have it - a prime example of how the Court will take into account all the circumstances of the case when deciding on the appropriate level of damages to award in a libel case.
Of course, although the damages amount is relatively low, the real “win” for Ms Riley will likely be that the Defendant is liable to pay her reasonable legal costs. No-one needs to be reminded that libel litigation is expensive, and so the main financial win for her, inevitably, lies with the recovery of costs.