Twitter Libel Claims
In the case of Cairns v Modi  EWHC 2859 (QB) (10 November 2010) the Claimant Chris Cairns brought an action for libel in respect of two publications dated 5 January 2010.
Chris Lance Cairns is a well known cricketer who played in New Zealand and England over twenty seasons before retiring in 2004, by which time he had won 62 caps and captained the New Zealand team on several occasions. The Defendant, Lalit Modi, was the former chairman and Commissioner of the Indian Premier League (IPL) and Vice President of the Board of Cricketing Control for India (BCCI), both positions he was suspended from in April 2010.
One of the allegedly defamatory publications Cairns complained of was a tweet made by the Defendant which was broadcast on the popular US social media website Twitter. The other article the subject of the complaint was a piece published in an online cricket magazine. other an article in the online cricket magazine, Cricinfo. Both articles accused Cairns of being involved in match fixing, or at least suggested there was a strong basis for this belief.
Cairns sought and was granted permission by the Court to serve proceedings out of the jurisdiction, firstly upon the Defendant, Modi, in India, and subsequently upon his London Solicitors.
In response, the Defendant asked for the two Court orders, allowing service outside the jurisdiction, to be set aside on a number of grounds. One of these grounds was that the claim would be more appropriately heard in an Indian Court, however this claim was abandoned. The other ground, which the Court had to determine, was whether it was satisfied that a substantial tort had occurred within the jurisdiction.
The defendant argued that the question of whether a substantial tort had been committed within the jurisdiction in relation to the Tweet should be determined before the Judge as a preliminary matter. The Defendant invited the court to determine this issue on the basis of conflicting oral and written evidence from two experts.
In libel claims it is up to the Claimant to prove publication to a third party has taken place in order to succeed. There is no presumption that a publication has necessarily been read. The burden of proving that it has rests upon the claimant. Therefore parties to a case will occasionally have to make enquiries as to the likelihood of an alleged defamatory publication having been read in order to prevail in a defamation case. The defendant requested that the Court hold a preliminary hearing into the extent to which the Tweet had been read within England and Wales, prior to allowing the matter to proceed to trial.
In determining this preliminary issue, the Court heard evidence from Lucy Middleton, an employee of the Defendant Solicitors, who gave evidence of her efforts to identify potential readers of the Defendant’s Tweet. Middleton testified that she could not find contact details for many of the defendant’s followers through internet searches, and of those she did manage to contact, only two confirmed that they had actually read the Tweet. The person who stated he read the tweet said he was situated in Hong Kong at the relevant time.
The issue of publication in the jurisdiction in which the claim was brought is relevant not just for the purposes of determining liability and damages for defamation, but also to the court’s jurisdiction or ability to hear the case.
The Defendant contended the Claimant had not adequately demonstrated to the court that a real and substantial tort had occurred within the jurisdiction, relying on the case of
Jameel v Dow Jones & Co  QB 946.
EXPERT EVIDENCE REGARDING TWITTER DEFAMATION AND PUBLICATION
The Claimant’s expert witness, Dr Godfrey, in his statement identified and outlined to the Court the different ways a tweet can be distributed. He estimated that the number of followers who would have received the tweet in the jurisdiction directly to have been in the vicinity of between 200 and 800. He also testified that the number of individuals who probably received a communication of the Tweet in the jurisdiction by other means would have greatly exceeded this number.
The Defendant’s expert, Mr Henderson arrived at an estimate of 90 followers in the jurisdiction, but he reduced the figure by 50% on the basis that not all of the recipients of the Tweet would necessarily have read it. After discounting the figure for other reasons, he arrived at a figure of 35. Henderson made no attempt to estimate the total number of persons who would have read the publication in the jurisdiction by other means than directly through Twitter.
The Claimant was critical of the limitations of Middletons’ method, due to the difficulties in locating followers and the reluctance of followers to speak with a Solicitor.
The Claimant argued that the risk of re-publication of the offending tweets was likely to be substantial, as both parties were prominent figures in a game which was extremely popular in England. Given the sensational and scandalous nature of the allegation contained in the Tweet and it’s topical nature at the time it was published, the claimant argued that the extent of it’s circulation shouldn’t be underestimated by the Court.
The Claimant also argued that the Jameel case didn’t have any application to the present case, particularly in the light of the fact that the Claimant Cairns had resided in England, and planned to return to England at some point.
The Court was referred by the Claimant to case law in which Courts had refused to strike out libel claims where a publication had only been published to a single person. For instance, in Mardas v New York Times Company & Anor , EWHC 3135 (QB) Justice Eady of the English High Court concluded that the determination of “substantial publication,” in the context of online defamation cases, “cannot depend upon a numbers game, with the court fixing an arbitrary minimum according to the facts of the case.”.
Eady J remarked that Jameel constituted an “exceptional case” which warranted striking out as an abuse of process, because there had been minimal publication and damage and further there was no real prospect of the plaintiff’s reputation being vindicated if the case was allowed to proceed. His Honour held that even if there had only been 27 hits on the story in the Mardas case, the Mardas case could be differentiated from Jameel.
The claimant contended that even if the Court characterised the publication of the Tweet as a case of insignificant publication, the present case was very different than the Jameel case in that there was a very real risk of re-publication to a much wider audience.
The Court rejected the defendant’s request that the preliminary issue of jurisdiction take place prior to proceeding to a full hearing occurring. The Court accepted that the main concern in a libel action is vindication of reputation rather than damages for harm suffered in the past, and damage that has already occurred prior to an action isn’t the decisive factor in determining the significance of a libel claim. Vindication, in the form of a retraction, verdict or judgement to the effect the allegation is also an important factor.
Therefore Chris Cairns will now have his Twitter libel claim against the former Chairman of the Indian Premier League, Lalit Modi heard and determined by a Court, who will decide whether or not Modi is liable for committing Twitter defamation.