Doctor doctor! I’ve been defamed!

Social media is an unavoidable part of our daily lives. Even for the (no doubt diminishing) group of people who have no accounts themselves, the various tweets, instagram and facebook posts of top celebrities and ‘influencers’ often find their way across mainstream media outlets. The pros and cons of social media are well known. On one side these websites have helped people stay connected in the unprecedented times we have faced as a community over the past 18 months. On the other, stories of bullying, ‘trolling’ and other forms of generally unpleasant behaviour have hit the deadlines leading to (amongst other reactions) social media blackouts amongst the footballing community only a few weekends ago.

There are myriad reasons to watch what you publish on social media including (perhaps chief amongst them) the basic human decency of wanting to avoid hurting someone else’s feelings. However, Dr Christian Jessen (of “Embarrassing Bodies” fame) has recently found out ill-advised behaviour online can come at a hefty price when he decided to tweet that the First Minister of Northern Ireland, Rt Honourable Mrs Arlene Foster MLA, was having an affair.

The Tweets

On 23 December 2019, following what Dr Jessen had described as “extensive online comment” and “many hundreds of tweets going back quite some time” alleging that the First Minister was having an affair, Dr Jessen tweeted the allegation to his 300,000 plus followers.

The following day Mrs Foster’s solicitor, well known defamation specialist Paul Tweed, tweeted Dr Jessen asking him to take the tweet down or face legal action. Dr Jessen has said that he would probably have seen this tweet "scrolling through many replies" but he “never imagined…a lawyer would tweet [him] a statement over Twitter on Christmas Eve…the likelihood of [him] not taking it seriously, which [he] didn’t, is very high”.

Dr Jessen responded to Mr Tweed’s tweet (by a tweet on Christmas day): “Lol”.

As it happened, Mrs Foster’s legal team adopted a more formal means of communication in the new year and wrote to Dr Jessen on 2 January 2020. Dr Jessen says he took legal advice, before deleting the tweet (without admission of liability or apology) on 7 January 2020.

The Case

Mrs Foster subsequently issued proceedings against Dr Jessen. He took limited part in those proceedings and didn’t respond to any of Mrs Foster’s solicitors’ 10 emails and letters between 20 January 2020 and 9 April 2021. As a result of his failure to engage, judgment in default in relation to liability was entered against Dr Jessen and, subsequently, Dr Jessen was ordered to pay Mrs Foster the sum of £125,000 plus her costs.

Lessons learned

The first, and perhaps most obvious lesson learned in this matter is to be careful what you tweet or put on social media. Here, whilst Dr Jessen’s first tweet started the ball rolling the Court found that his subsequent tweets evidenced enjoyment and encouragement at the response it was receiving. It perhaps goes without saying that responding ‘lol’ to a threat of legal action was not a wise move, and the Court held that these matters constituted aggravating factors in the decision against Dr Jessen.

Whilst still relatively untested in the UK, recent defamation cases overseas (notably involving Elon Musk and a diver involved in the rescue of the Thai football team trapped in a cave) suggest that a prompt removal and apology of a tweeted ‘joke’ in bad taste could help the poster avoid liability. Those features were missing in Dr Jessen’s case; no doubt the lack of an apology and subsequent responsive tweets affected Dr Jessen’s chances of defending the claim or limiting the damages award.

It is also worth noting that there is not necessarily safety in numbers; we are not privy to the reasons behind Mrs Foster’s decision to sue Dr Jessen rather than anyone else who was propagating the rumour but one suspects that his number of followers and perhaps perceived depth of pockets were instrumental factors. It is not safe to assume, just because a lot of people are making the same allegation, that any or each of those allegations are not individually actionable. Indeed, this case is a vivid reminder that you don’t have to be the first person to post defamatory material to be sued for it.

More broadly, Dr Jessen’s actions stand as a cautionary tale for defendants in all kinds of claims not to bury their heads in the sand when it comes to ongoing proceedings. Dr Jessen’s defence was hamstrung from the start by his failure to engage in the Court process and his attempt to enter a late appearance in April 2021 was refused. The emu approach, burying one’s head in the sand, will usually serve to make things worse rather than better.

Should you have any queries on the content of this article, please contact the Dispute Resolution Team at Leathes Prior on 01603 610911 or by e-mail.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.