Alexandros K. Antoniou, Lecturer in Media Law, University of Essex*

On 19 December 2018, Mr. Justice Nicklin handed down the judgment in Monir v Wood, ordering the defendant, the chairman of a local branch of a political party, to pay GBP 40 000 in damages for a defamatory message sent by a branch member through the branch’s Twitter account. The judgment highlights the potential liability of those who set up social media accounts and then delegate responsibility to others to post on their behalf.

The claimant in this action was Zahir Monir, a businessman and Labour activist from Rotherham. He brought libel proceedings against Stephen Wood, the former chairman of the Bristol branch of the UK Independence Party (UKIP), over a tweet published on the branch’s Twitter account on 4 May 2015, shortly before that year’s General Election. Although it did not directly identify the claimant, the tweet comprised a photograph of him alongside the Labour MP for Rotherham, Sarah Champion, and another man. The text of the tweet, which evidently referred to the photograph, stated that the Labour candidate “stood with 2 suspended child grooming taxi drivers. DO NOT VOTE LABOUR.” The allegation against the claimant was false. Mr. Monir sued the chairman of the branch, Stephen Wood, contending that he had been defamed by the tweet and that Mr. Wood was legally responsible for it. However, the tweet had actually been written and posted by the vice chairman of the UKIP Bristol branch, John Langley, to whom responsibility for the operation and control of the account had been delegated by Mr. Wood.

On the facts, the Court found that “ultimate control” of the Twitter account remained vested in Mr. Wood “at all times”, as it was registered using his email address. The claimant complained to the defendant about the tweet on 8 May, but the defendant had not focused on the offending tweet’s precise terms until after the police intervened on 1 June. The defendant had also become aware of earlier racist postings by the vice chair, but nevertheless decided not to remove him from the account for reasons “clearly born of political expediency” given the forthcoming election.

As regards the issue of meaning, Nicklin J. took the view that the ordinary reasonable reader would understand the offending tweet to mean that “the two men were involved in the sexual abuse of children.” This was a “very seriously defamatory allegation” of conduct amounting to a serious criminal offence that would result in a substantial term of imprisonment following conviction. As such, the tweet was also deemed to have met the “serious harm” threshold under the Defamation Act 2013. Moreover, the judge was satisfied that Mr. Monir successfully established that the tweet at issue had been published to a number of people who understood the words in it to refer to him. Also, the republication of the tweet via WhatsApp was likely to have led to “a significant, but unquantifiable number of people” identifying the claimant from the photograph.

The defendant, who had not posted the tweet on the Bristol UKIP Twitter account himself, denied responsibility for its publication. After reviewing the relevant authorities, Nicklin J. concluded, however, that the defendant was liable for the tweet on the basis of agency: Mr. Wood had created the Bristol UKIP account and retained control over it both practically and by means of his authority as chairman of the Bristol branch. The libellous tweet was posted by Mr. Langley, not on his own account, but in his capacity as campaign manager in the course of executing the task delegated to him by the defendant, i.e. campaigning for Mr. Wood and Bristol UKIP. In Nicklin J.’s judgment, the evidence of Mr. Wood’s knowledge of the tweet in question was also sufficient to infer that “he acquiesced in and thereby authorised its continued publication.”

On the issue of remedies, Nicklin J. concluded that the gravity of the defamatory allegation put it “towards the top end of seriousness” for calculating damages. Although the scale of the publication was fairly limited, the Court assessed the significance of the publishees as well as the extent to which publication to them had tarnished the claimant’s reputation and increased his hurt and embarrassment. Further, the evidence of serious and significant reputational harm was compounded by the defendant’s “mean-spirited stance” and refusal to publicly apologise and withdraw the allegation. Nicklin J. found that the appropriate award was GBP 40 000. If this libel had been published in a national newspaper, a figure of GBP 250 000 or more would have been “easily justified.” Finally, there was no evidence of the defendant threatening to republish the offending tweet or anything similar and thus an injunction was unnecessary in the circumstances.

*Reblogged from IRIS Merlin blog

Dr Andrea Fejos, Lecturer in Law, University of Essex. Dr Fejos researches and teaches in the areas of consumer contract law and financial services law. She has published on a range of topics including on standard form contracts, unfair contract terms, consumer credit, consumer alternative dispute resolution and enforcement of consumer rights.

The 1993/13/EC Unfair Contract Terms Directive (hereinafter: the Directive) is among the oldest European consumer protection instruments, and recently became a catalyst for major legal reforms with social impact, improving the lives of millions of consumers.

The financial crisis hit many consumers hard, in particular making their mortgage loans more expensive than anticipated. Loan instalments could eat up most of the consumers’ income, posing a serious risk of poverty and homelessness. Since the contract terms regulate much of the relationship between consumers and financial firms, the detriment could often be traced back to one or more unfair contract terms. When consumers asked their national courts to remove these from their contracts, the national courts sought help from the EU’s Court of Justice (hereinafter: the Court) in interpreting their unfair contract terms provisions that are based on the Directive. In doing so, national courts came to ‘unexplored territory’.

In over a decade prior to the financial crisis there had been few chances for the Court to interpret the Directive. The Court was mostly asked to clarify the scope of the Directive’s Article 6, on the consequences of unfair terms. In doing so, it provided a valuable contribution to a high level of consumer protection e.g. obliging national courts to decide on the unfairness of a contract term also on their own motion, without an explicit request of the claimant and without establishing a time limit for asking national courts to rule on unfairness.

Unfortunately, despite the fact that the judgements of the Court are binding, many of these decisions and instructions by the Court were not respected in practice, meaning that these achievements had a limited real effect on consumer welfare.

A sleeping giant

In addition, some important aspects, such as the meaning of “transparency” of consumer contracts under Article 5 and 4(2) of the Directive, which affects the drafting and interpretation of contract terms, did not get sufficient attention. The Court also refrained from taking advantage of the presented opportunities in interpreting the general concepts of “good faith” and “significant imbalance” in the Directive’s test of fairness in Article 3(1). Apart from the first case when the Court declared a jurisdiction term unfair, the Court repeatedly reiterated its inability to rule on the fairness of particular contract terms, stressing that its powers were limited to providing general guidance on the concept of fairness, leaving the application of these general rules to the facts of the case to the national courts. In giving general guidance, the Court generally did no more than to repeat the text of the Directive. For more than a decade, the protective effect of this essential piece of EU consumer protection law depended on national courts’ interpretations, without a tangible overall effect on European consumer welfare.

This was changed by the financial crisis and its aftermath, which resulted in a virtual torrent of cases. The increased case-load pushed the Court to be more interventionist, and the effect of these judgments went way beyond individual cases.

A paradigm shift  

In 2013, the Court delivered its judgment in a landmark case known under the name of the consumer claimant “Aziz”. In this case the court considered the controversial Spanish mortgage enforcement procedure and ruled the national court’s inability to pause the mortgage enforcement procedure while the court rules on the fairness of a contract term is incompatible with European Union law. Importantly, the Court also gave general guidance on the understanding of the two limbs of the test of fairness in Article 3(1) of the Directive and for the very first time gave guidance in applying those general principles to specific contract terms: to payment acceleration terms (terms that allowed creditors to call in the entire debt upon default) and terms that fixed the interest payable upon default.

This judgment resulted in a major law reform in Spain. Incorporating the Aziz ruling, Law 1/2013 introduced important rules on making these loans cheaper and safer to use by capping the default interest and limiting the applicability of payment acceleration clauses (amending the Spanish Mortgage Act). It also strengthened the position of debtors in mortgage enforcement proceedings (amending the Civil Procedure Code).

The Court delivered another landmark decision in 2016 on Spanish “floor clauses”, clauses that capped the minimum interest rate to ensure the banks do not suffer loss in case of negative interest rates. Although the Spanish Supreme Court had already established the unfairness of these clauses, it had limited the effect of its judgment to the future. When the cases were referred to the European Court of Justice, the Court found this approach incompatible with the Directive. It ruled that unfair terms must be regarded as never having existed, and thus the position of consumers must be accordingly restored. The judgment was followed by the adoption of another new Spanish Law 1/2017 based on which consumers that suffered losses must have been repaid affecting 2.5 million mortgage holders.

Finally, the case of Kásler involved a mortgage loan indexed in foreign currency, a type of a loan common to many Member States causing particularly significant detriment in Hungary where these loans amounted to 90 percent of the mortgage portfolio. In Kásler, the Court delivered a valuable interpretation of Article 4(2) of the Directive, establishing that contract terms transferring the exchange rate risk onto consumers (where the banks more expensive selling rate of exchange was applied to calculate loan instalments) can only be exempted from the test of fairness (as an excluded “price” term) if they provide for an essential obligation under the contract and if they are understandable to the extent that consumers are able to estimate the economic consequences of the terms. This judgment ultimately resulted in the adoption of the Hungarian Act XXXVIII of 2014 that declared contract terms transferring the exchange rate risk onto consumers null and void, retroactively replacing these with the official exchange rate of the Hungarian National Bank. In addition, based on Act XL of 2014 banks were ordered to compensate individually every consumer for the loss that they have suffered.

The financial crisis and the surge of cases raised interesting (and perhaps for many controversial) questions on the relationship of courts and the legislator, however, in practice, these judgments delivered significant social justice for consumers. This recent case-law transformed the EU directive on unfair contract terms from being a “toothless tiger” to a potentially very powerful instrument, producing social justice effects that were probably not anticipated and that somewhat remained hidden as when one stands behind frosty glass.

Photo credit: Nerdwallet.com

* Reblogged from the BEUC blog