Christian Jessen, who is well-known for presenting Channel 4’s Embarrassing Bodies, was recently ordered to pay Arlene Foster £125,000 in libel damages, plus legal costs, because of a tweet which he published in December 2019.
Jessen tweeted that Mrs. Foster, who was then Northern Ireland’s First Minister, was rumoured to be having an affair, said that she had been “busted” and highlighted that she has previously preached “about the sanctity of marriage”.
Mrs. Foster vehemently denied the accusations and sought legal representation. Despite receiving a legal letter and a comment from Mrs. Foster’s lawyer in response to his tweet, the tweet remained published to Jessen’s 311,000 followers for 2 weeks, receiving 3,500 likes and being shared 517 times.
Mrs. Foster’s argument was that she had been married for 25 years with three children, was recognised by the public as a committed Christian, and has publicly extolled the sanctity and importance of marriage – therefore the tweet was highly defamatory.
The High Court in Belfast agreed, ruling that the tweet suggested she was an adulterer, a hypocrite and a homophobe.
The Court also noted that the tweet was published at a time when delicate negotiations were taking place regarding the re-establishment of the Northern Ireland executive, and the tweet erroneously called into question Mrs. Foster’s suitability for her role.
Jessen did not engage with the correspondence from Mrs. Foster’s lawyers, but eventually removed the tweet and stated that he had done so. Jessen did not offer to publish an apology.
Mrs. Foster went on to issue libel proceedings, which Jessen did not engage with for 12 months because he believed (wrongly) that court proceedings were being stalled due to the pandemic.
In deciding the case, the High Court of Northern Ireland described the tweet as an “outrageous libel” and said it was “grossly defamatory”.
In concluding that the appropriate award of damages should be £125,000 the Court did not offer any discount as there were no mitigating factors.
The Court referenced the absence of an apology and the need for vindication, as well as the fact that the tweet was reported on by mainstream media in the jurisdiction as reasons for the substantial award.
Jessen has also been ordered to pay Mrs. Foster’s legal costs “on an indemnity basis” which means that he will be responsible for paying almost all of her legal costs, whereas a standard award of costs in cases such as this would mean that the losing party pays around 60-70% of the other side’s legal costs. Whilst we do not know the amount of the legal costs involved, they will undoubtedly be substantial.
So, what can be taken from this case?
Firstly, it serves as a reminder that the laws of libel apply to social media posts in exactly the same way that they apply to traditional print media and publishers’ websites.
Secondly, it is very clear that the failure to remove the offending tweet for 2 weeks, as well as the absence of an apology, were considered to be aggravating factors which contributed to the size of the damages award. Whilst damages awards for libel tend to be higher in Northern Ireland than they do in England and Wales, this is still a substantial award.
Thirdly, the context of the publication and the circumstances of the subject of the libel are relevant. Jessen’s tweet was considered to be particularly offensive given Mrs. Foster’s position, beliefs and family situation – therefore, these kind of factors need to be considered when assessing whether a potential publication could be defamatory.
In short, it is all about context!