Tweets, Trouble, and ‘Serious Harm’: What Really Matters in Court

Background

Former PTI minister Zulfi Bukhari has succeeded in his defamation and harassment claims against his cousin, Tauqeer Bukhari. Following a 4-day trial, the High Court awarded Zulfi Bukhari £40,000 in damages for libel and £3,000 for his harassment claim. 

Zulfi, the adviser to former prime minister Imran Khan, was subjected to a sustained Twitter campaign which was described by Deputy High Court Judge Aidan Eardley KC, as a “relentless torrent of abuse”.  The claim concerned 249 tweets published by the Defendant between September 2019 and March 2020, some of which included embedded videos. The allegations made against the Claimant included corruption, dishonesty, fraud, theft, human smuggling and responsibility for physical attacks.

Serious Harm

This case serves as a useful reminder of how the Court evaluates whether the conduct complained of constitutes ‘serious harm’, particularly in the context of social media posts.

As a starting point, Section 1(1) of the Defamation Act 2013 provides that "a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant".  "Serious" is an ordinary English word requiring no further gloss: Lachaux v Independent Print Ltd [2017] EWCA Civ 1334, [2018] QB 594 at [44]. 

Whether serious reputational harm has been caused is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had: Lachaux in the Supreme Court [2019] UKSC 27, [2020] AC 612 at [14] (Lord Sumption).

In reaching Judgment in this case, the Managing Judge considered the following issues:

• The status of the claimant’s reputation prior to the offending material - The status of a claimant's pre-existing reputation among publishees is a relevant matter. A defendant is entitled to argue that a claimant's reputation was already so poor that it was incapable of suffering any further serious harm. In this case, the Judge accepted that the Claimant was ‘a man of good reputation’ before the Defendant commenced his twitter campaign, and was not persuaded by the Defendant’s (unpleaded) case that the Claimant’s reputation was already poor.
• The degree of seriousness of the allegations made – In this case, the Judge concluded that the allegations in question were very serious, particularly given the Claimant’s position i.e. (1) a businessman who trades on his reputation for integrity and (2) a minister in a government ostensibly committed to tackling corruption and criminality.
• The apparent credibility of the Defendant - In this case, the Judge held that readers would understand the Defendant to be a close relative of the Claimant (being his cousin) and therefore ‘someone with privileged access to inside knowledge about the family matters’. However, whilst this supported the Claimant’s case on serious harm, the Judge also pointed out that some readers would have noticed ‘the repetitive and obsessive nature of the Defendant’s tweeting’ and would have been reluctant to take his allegations at face value.
• The nature of the publication(s) themselves - Here, the Judge highlighted that the tweets were short, pithy tweets published ‘in the fast-moving, conversational world of Twitter’ and on this basis, some readers could be reluctant to place any reliance on the statements ‘often rattled off in rapid response to some other news story’ without seeing explanatory detail.
• The characteristic of the readership – As the Defendant presented himself on Twitter as the " Real cousin & victim of Zulfi Bukhari (PM Imran Khan's advisor and minister… " the Judge held that it was reasonable to infer that many of those who followed the Defendant will have done so because they had a particular interest in the Claimant.
• The extent of publication and republication – Whilst the Judge took a cautious approach when estimating the extent of publication (given the limited evidence available in this case), the following points still serve as useful guidance:
  • The best evidence of the overall extent of publication for any particular tweet would have been the number of "impressions" that each tweet received. 
  • The number of followers is a much less reliable basis because whether a particular follower would read a particular tweet will depend on how often they actually use Twitter, and how busy their timelines are. In this case, the Judge noted that the 40 tweets complained of amounted to a very small proportion of the Defendant's output (which had reached 3000+ tweets by mid-November 2019). He pointed out that even someone who only followed the Defendant would have had their “timeline swamped by non-defamatory material”;
  • An element of uncertainty remains as to both the number of followers that a party has at the time of publication, and the location that the tweets are read. 
  • It is easier to evaluate serious harm in the context of online videos, as these often show a definitive number of views, although there is still a degree of uncertainty as to how and when the views took place. 
• Number of “likes” and “retweets” – The Judge also considered how many “likes” and “retweets” the posts had, in order to gauge the impact that the tweet was having. This is a separate point to the extent of publication (at point 6 above), as this constitutes evidence that readers have paid attention to the tweet in a way that is likely to have affected their view of the claimant.
• “Grapevine Percolation” - The Judge also inferred a ‘degree of grapevine percolation’ to allow for reputational damage which went beyond the initial tweets and subsequent retweets. He stated ‘Given the Claimant's prominence in the Pakistani community here, it is likely that Defendant's allegations will have been passed on to some extent not only through retweets but by other forms of electronic communication and by word of mouth.’ This is significant, as it demonstrates that Courts have considerable leeway to exercise discretion in making inferences where appropriate to do so.

Jurisdiction 

Another interesting feature of this case was the way in which the Court addressed the harassment of the Claimant in circumstances where he spent a significant amount of time outside of the UK during the period complained of. The Court concluded that it could take into account all of the Defendant’s tweets and videos as constituting a course of conduct, and not just those which were posted or seen by the Claimant when he was within the jurisdiction. The Claimant’s limited presence in the jurisdiction was, however, something which the court then took into account in determining the level of damages to be awarded for harassment. 

Conclusion

This case serves as a useful reminder as to how the Courts will approach social media based defamation claims and the key factors they will consider in reaching Judgment. Given the fast moving and dynamic nature of social media platforms (such as Twitter), it is crucial to take screenshots or otherwise preserve evidence of the offending material at the outset of any prospective claim. As evidenced above, this will enable the parties and the Court to evaluate whether the high threshold for ‘serious harm’ has been met, which is the keystone for any successful defamation claim.