John Finucane and Mark Collins

Factual and Procedural Background

The Plaintiff is an elected member of Parliament representing a political party and is also a solicitor. The Defendant is a local councillor and member of a different political party. The defamation claim arises from a tweet posted by the Defendant on 18 November 2019, which stated that the Plaintiff "supports and promotes the IRA" and is "not innocent by any means." This tweet was made in the context of public attacks against the Plaintiff and his family during his election campaign, including banners and social media posts critical of the Plaintiff.

Following the tweet, the Plaintiff issued a pre-action protocol letter alleging defamation, and subsequently commenced legal proceedings with a writ of summons. The Defendant entered an appearance and served a Defence. Various interlocutory applications were made concerning the defamatory meaning pleaded and the defences of justification and honest comment. The High Court judge issued rulings on these applications, including directions for the Defendant to amend the Defence. The case proceeded with further amended pleadings and additional interlocutory hearings, culminating in an interlocutory order from which the Plaintiff appealed.

Legal Issues Presented

1. Whether the defamatory meaning of the tweet as pleaded by the Defendant was a capable defamatory meaning.
2. Whether the High Court judge erred in refusing to strike out the particulars of justification pleaded by the Defendant.
3. Whether the High Court judge erred in refusing to strike out the defence of honest comment pleaded by the Defendant.

Arguments of the Parties

Appellant's Arguments

• The defamatory meaning pleaded by the Defendant improperly included the Plaintiff's political party membership, which was not referenced in the tweet and thus should be excluded.
• The particulars of justification and honest comment defences were defective and should be struck out.
• The judge erred as a matter of law in accepting the Defendant’s pleaded defamatory meaning and in refusing to strike out the defences.

Respondent's Arguments

• The Defendant did not vigorously oppose the exclusion of the Plaintiff’s political membership from the meaning pleaded.
• The Defendant contended that the Plaintiff’s political identity was relevant to the defences of justification and honest comment and should be considered in that context.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by considering the proper defamatory meaning of the tweet. It acknowledged that the tweet was capable of bearing a defamatory meaning as pleaded by the Plaintiff, consisting of three elements: that the Plaintiff supports, promotes, and condones acts of terrorism by the IRA. The High Court judge had expanded this meaning to include the Plaintiff’s political party membership, which the Court of Appeal found to be an error. The court held that the Plaintiff’s political identity is not part of the ordinary and natural meaning of the words used, but it is relevant contextually and may be considered within the defences of justification and honest comment.

The court emphasized the importance of context in interpreting social media posts, citing recent Supreme Court authority that stresses an impressionistic approach suitable to the medium of Twitter. It noted that the High Court judge appeared to conflate the question of meaning with the viability of defences, which are distinct legal issues.

Regarding the defences of justification and honest comment, the court observed that the pleadings to date had been imprecise and confused, particularly failing to properly distinguish between statements of fact and comment. The court noted that determining whether the tweet constituted fact, opinion, or a mixture of both is a complex, fact-sensitive inquiry that should be undertaken at trial rather than on interlocutory appeal.

Accordingly, the Court of Appeal altered the permitted defamatory meaning to the narrower version pleaded by the Plaintiff, excluding reference to political membership, and remitted the remaining issues concerning the defences to a different judge for trial management and determination, expressing no view on the ultimate merits.

Holding and Implications

The Court of Appeal granted leave to appeal and allowed the appeal in part by setting aside the interlocutory order of the High Court insofar as it expanded the defamatory meaning to include the Plaintiff’s political party membership. The court ordered that the defamatory meaning be confined to the three elements originally pleaded by the Plaintiff.

All other matters, including the viability of the defences of justification and honest comment, were remitted to a first instance judge for further consideration and trial management. The court did not express any view on the overall merits of the case and reserved costs to the trial judge, indicating that the decision did not establish new precedent but clarified the approach to meaning in the context of defamation pleadings involving social media.