One of the difficulties lawyers face is to define the precise meaning of words in the context of the ever-changing English language. That was certainly so in one case in which a judge relied too heavily on the Oxford English Dictionary (OED) in trying to discern the meaning of words used on the casual medium of Facebook.
A man launched defamation proceedings against his ex-wife after she stated in a Facebook post that he had ‘tried to strangle’ her. He argued that the natural and ordinary meaning of those words was that he had tried to kill her. She submitted that Facebook users would have understood the words to mean that he had grasped her by the neck and inhibited her breathing so as to put her in fear of her life.
Following a preliminary hearing, the judge preferred the meaning contended for by the ex-husband and rejected the ex-wife’s defence that the post was justified. In doing so, he placed heavy reliance on the OED, which gives two alternative meanings for the word ‘strangle’: to kill by external compression of the throat or to constrict the neck or throat painfully. The ex-wife’s appeal against the judge’s decision was subsequently dismissed by the Court of Appeal.
In unanimously upholding the ex-wife’s challenge to the latter ruling, the Supreme Court found that the judge erred in law in using the OED definitions as the starting point of his analysis of the post’s meaning and in failing to take into account the context in which the words were used. His flawed analysis had led to the obviously anomalous conclusion that the phrase ‘he strangled me’ entails a less serious accusation than the phrase ‘he tried to strangle me.’
The judge had gone beyond using the OED as a means of checking his conclusion on meaning and had failed to focus on what the words would have meant, in context, to a reasonable user of Facebook. The Court noted that Facebook posts are in the nature of casual conversations and that it is unwise to search for their theoretical or logically deductible meanings.
People who swiftly scroll through Facebook react to posts in an impressionistic and fleeting manner and the judge’s over-reliance on the OED resulted in a failure to conduct a realistic exploration of how the ordinary social media user would have understood the words. In substituting its own decision, the Court found that the post would have meant to an ordinary reader that the ex-husband grasped the ex-wife by the throat and applied force to her neck. In those circumstances, there was more than enough evidence on which the ex-wife’s justification defence should succeed.
