Laurence Fox, Elon Musk and the threat of Twitter libel

Social media is not often a place of polite disagreement.

Instead, constrained by character limits and emboldened by the onlooking crowds, the red mist descends and what began as a debate can quickly descend into something more vicious, personal and aggressive.

With political and social divides seemingly more exacerbated than in any time in recent memory, these clashes are only becoming more frequent.

Frequency, however, does not mean these incidents are above the law.

With social media functioning as one of the nodal points of modern culture, its importance, and the importance of what is posted, has changed. With tweets now often included in mainstream news reports, posts on social media have assumed greater significance – and with this, a greater need for accuracy.

Allegations made in the heat of disputes between well-known social media figures are not just unsightly spats – they can, and have, been viewed by the courts as defamatory.

A history of Twitter libel in the UK

The first case of Twitter libel being pursued in the English courts occurred in 2012, when former New Zealand cricket captain Chris Cairns was awarded £90,000 in damages after Lalit Modi, the former chairman of the IPL, accused him of match fixing.

Since then, cases have almost become regular: from food campaigner Jack Monroe’s award of damages against Katie Hopkins in 2017 to Left-wing activist Ash Sarkar’s successful defamation case against columnist Julie Burchill

Successive cases have prompted judges to release guides to try to prevent users falling into the same trap. Cases, however, are still frequent.  

Elon Musk and the JDart defence

In December of 2019, Elon Musk went to court after being sued by Vernon Unsworth, an experienced diver, for libel.

The dispute centred around Musk calling Unsworth, who he had disagreed with over the best method to rescue a team of Thai school boys from a flooding cave, a “pedo guy.”

During the four day trial at a federal court in Los Angeles, Musk defended his comments, saying the phrase was common in his native South Africa and adding that the phrase, instead of meaning “paedophile”, was more accurately interpreted as “creepy old man.”

Interestingly, his legal team also introduced a new concept to describe Musk’s actions: JDart. The acronym, Musk’s lawyers explained, meant: a Joke which was badly received, subsequently Deleted, with an Apology and further Responsive Tweets to move on from the matter.

With standards and precedents still being set for social media activity, especially in the US, Musk’s defence marks an interesting step forward – a codified defence for saying something defamatory online which you swiftly regret. Beyond the specifics of the case, it is unlikely that this will be the only time we see the JDart defence employed.

The combination of this argument, and the greater weight given to free speech in the American court system, meant that Musk was not found guilty.

Fox falls foul

Musk is not the only high profile figure to face legal action over comments made during a Twitter-fuelled argument: last week, Laurence Fox, the London mayoral candidate, was sued for libel over comments he made on Twitter.

During a heated disagreement over a tweet celebrating Black History Month from supermarket chain Sainsbury’s, Laurence Fox referred to Simon Blake, a mental health campaigner, Crystal, a drag star who previously appeared on Ru Paul’s Drag Race and Nicola Thorp, an actress, as “paedophiles.”

Fox defended the comments, which have since been deleted, as a “meaningless and baseless insult”, saying “Free speech. You throw meaningless and baseless insults at someone you get a meaningless and baseless insult in return.”

Despite Fox’s protestations, the idea of internet arguments providing a blank cheque of allegations is unlikely to gain traction.

At its most combative, social media can often resemble a gladiator’s arena – that does not mean, however, that anything goes.

This sentiment was echoed by Rory Lynch, a Senior Associate in the Vardags Reputation & Privacy team, who commented: “Laurence Fox is just the latest celebrity to have his conduct on social media assessed by a court – he is certainly not the first and he will by no means be the last.

“With the role of social media changing so rapidly in our lives, it seems that some may not have adapted their conduct accordingly – just because social media can be a place of fun and entertainment, it does not mean that any allegations are fair game. Even swiftly deleted tweets can still make someone liable for the damage done when it was online, especially if it goes viral before the user can remove it. What you say online can be just as influential as something you allege in print – a crucial thing to remember next time you feel yourself being drawn into a Twitter row.”

Whether you are facing defamation in the press, by an individual, harassment, blackmail, mishandling of your private data, pre-publication threats, or you wish to gain top legal advice on such matters, reach out to our leading reputation and privacy team today.