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The facts in Cairns v Modi

Mr Cairns (“the Claimant”) is an acclaimed New Zealand cricketer. He won 62 Test caps for New Zealand and captained his country 7 times in an international career of 267 games. His last appearance for the New Zealand cricket team was in 2006.

In 2008 the Claimant played for and captained the Chanigarh Lions in three international tournaments from 10 October to 16 November. He was also the coach in the third tournament. Two domestic tournaments were also held in this time period.

On 5 January 2010 Mr Modi (“the Defendant”) posted on his official “account” on Twitter that the following statement: “Chris Cairns removed from the IPL auction list due to his past record in match fixing. This was done by the Governing Council today”. This statement was (as well as being published on Twitter) re-published an article in which the Defendant’s statement was repeated.

Mr Cairns was unhappy with this statement and subsequently sued Mr Modi for his defamatory comments on Twitter and to Cricinfo.

The law on defamation

To succeed in a claim for defamation the Claimant must prove, on the balance of probabilities, three separate elements:

  1. That a defamatory statement has been made
  2. That this defamatory statement referred to the Claimant
  3. That the defamatory statement was published to at least one other third party

A defamatory statement is a statement which lowers the Claimant in the eyes of right-thinking people by exposing the victim to hatred, contempt or ridicule. There are ways in which a defamatory statement can be made – in permanent (libel) form or in inpermanent (slander) form.

Publication involves the communication of the defamatory statement to at least one other person than the Claimant themselves.

Should a case for defamation be made out by the Claimant, the Defendant has four main lines of defence open to it, namely:

  1. Consent
  2. Truth
  3. Fair comment
  4. Privilege

Should a Claimant succeed in proving liability for defamation, the court will then consider the appropriate remedy. The remedies that can be achieved in a claim for defamation are two-fold:

  1. Damages
  2. Injunction

The purpose of damages in a claim for defamation is threefold:

  1. to compensate the Claimant for the injury to feelings caused by the publication of the defamatory statement
  2. to attempt to repair the damage caused to the Claimant’s reputation
  3. to justify the Claimant’s reputation

The High Court’s judgment in Cairns v Modi

The High Court found in the Claimant’s favour. The judge believed that the statement was defamatory, that it referred to the Claimant, and that the statement was communicated to a third party. The Defendant had attempted at an earlier date to defend the claim on the basis that at the time of the publication of the statement on Twitter (in 2010) Mr Modi had too few followers in England and Wales to justify a real and substantial tort.

As a result, it fell to the High Court to consider whether any of the defences were viable. It was decided that in fact none of the defences applied. Mr Justice Bean considered that the Defendant had not proved on the balance of probabilities that the defamatory statement was true. He cited the Defendant’s failure to present sufficient evidence of the truth of the allegation to the High Court, including a failure to present witness evidence.

With liability determined, it fell to Mr Justice Bean to consider the applicable remedy. He considered that damages of £75,000 were appropriate due to the nature of Mr Cairn’s reputation and the damage that the defamatory statement had caused to his personal integrity and professional reputation. Aggravated damages of £15,000 were also awarded, taking the total compensation to £90,000. Mr Justice Bean also stated that the Claimant was entitled to apply for an injunction against Mr Modi.

Our thoughts

This is a fairly straightforward defamation case. What’s interesting about it is the fact that it is the first reported case concerning Twitter in the High Court. With social media growing ever more pervasive and powerful by the day, it looks like defamation cases concerning publication on social media (whether it’s Facebook, Linked In, Twitter, or a new service such as Tumblr) can only be on the up.

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