At first this decision looks sensible, Facebook is indeed a fleeting experience, we leap through it as we do a conversation. Thus what is libel in a Facebook post becomes a little different from what it might be in something more carefully edited and considered. More like speech in fact. But that then creates a problem, if Facebook is like speech then it shouldn’t be subject to libel law at all, should it?[perfectpullquote align=”full” bordertop=”false” cite=”” link=”” color=”” class=”” size=””] Facebook users do not ‘pause and reflect’ on posts so dictionary definitions do not apply, the Supreme Court has ruled in a landmark defamation case. Nicola Stocker, 51, had been found by two previous courts to have libelled her ex-husband Ronald Stocker after telling his new lover that he had tried to strangle her. [/perfectpullquote]
So, in a comment on a Facebook post do we mean strangle as in grip by the neck in order to kill or do we mean grip by the neck? Formal or colloquial definitions?[perfectpullquote align=”full” bordertop=”false” cite=”” link=”” color=”” class=”” size=””]Lord Kerr said the “ordinary reader” would have understood the comments to mean Mr Stocker, 68, grasped the neck of his ex-wife and not that he tried to kill her.[/perfectpullquote]
Huzzah for common sense and all that:[perfectpullquote align=”full” bordertop=”false” cite=”” link=”” color=”” class=”” size=””] But the ruling was overturned by the highest court in the country on Wednesday in what has been described as a “victory for common sense”. Lord Kerr said that judges have to consider what the ordinary reader would have thought the words meant and Mr Justice Mitting should have taken into account that Facebook is a fleeting medium. “People scroll through it quickly. They do not pause and reflect,” he said in the judgment. “They do not ponder on what meaning the statement might possibly bear. Their reaction to the post is impressionistic and fleeting.” [/perfectpullquote]
Effectively, it’s all to be judged by the standards of speech rather than writing. But if that’s true then we shouldn’t be talking about libel at all, should we? For libel doesn’t apply to speech – that’s slander. Which does indeed have those weaker rules, is very much harder to prove and all that.
So, the easiest way through this is to declare that Facebook is subject to slander law, not libel. Which would be a new can of worms, sure, but it does follow from the above.