Ex MMA fighter fails to land a blow on McGregor in High Court fight
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In a judgement delivered on 23 December 2022, the High Court refused an application for orders to restrain allegedly defamatory social media posts.
In Artem Lobov -v- Conor McGregor, the plaintiff claimed that the defendant published a series of “defamatory tweets” about him on the social media platform Twitter. The plaintiff alleged that he was referred to as a "rat" by the defendant, which he claimed implied that the plaintiff is an informant, a person who has betrayed someone, a person who reveals confidential information, or a person who double-crosses.
The plaintiff, who is a retired MMA fighter, alleged that the defendant breached an oral agreement to pay him five per cent of the proceeds of the sale of the whiskey brand "Proper 12". The allegedly defamatory tweets were published following a contractual dispute between the plaintiff and the defendant.
The principal complaint related to a tweet on 26 November 2022 which allegedly included an audio message in which the defendant sang “Artem is a ra-at nah nah nah nah hey, nah nah nah nah hey rat”. The affidavit grounding the application referenced other tweets that referred to the plaintiff as a “rat”.
Other posts referred to him as a turncoat and a little blouse, and his image was placed on a pack of sausages.
The High Court (Mr. Justice Garrett Simons) held that the 26 November tweet was not clearly defamatory. A "defamatory statement" tends to damage a person's reputation in the eyes of reasonable members of society. Saying a person is a "rat" without further explanation does not satisfy this test. The Court reiterated that there are two conditions precedent to grant an injunction. First, the offending statement must clearly bear a defamatory meaning, and second, the defendant must have no defence to the action that is reasonably likely to succeed. In addition, the court retains the discretion to grant or refuse an injunction, and one of the principal factors to be considered in the exercise of this discretion is the constitutional right to freedom of expression.
Courts have traditionally been reluctant to grant an interlocutory injunction, which would limit free speech, by granting an injunction in a truncated hearing based solely on affidavit evidence. It is generally considered preferable to await the outcome of the trial where oral evidence can be given.
It was relevant that the statement was published on Twitter, and not in a more traditional —and “serious”—medium like newspaper, radio or television. The court had to determine what meaning the hypothetical reasonable reader of the tweet would attribute to it in order to determine whether the statement was defamatory. The court did not believe that such a reader would interpret the term "rat" in the way alleged by the plaintiff.
The court said it was more likely that a reasonable reader of the tweets, by an ex-MMA fighter with a reputation for what had been called "trash talking", would view them as "a rant, a tirade of vulgar abuse." The Courts have long held that mere vulgar abuse is not defamatory. As a result, the injunction was refused.
This decision once again confirms that an injunction will only be granted in the clearest of cases. A plaintiff should think long and hard about seeking an injunction given the very high bar that has to be cleared. In particular, it should be borne in mind that the High Court was critical of the plaintiff for not swearing an affidavit himself to ground the application – the fact that he was in Spain was not deemed a satisfactory excuse – and that the injunction had been sought before a Statement of Claim, which could have pleaded facts extrinsic to the tweets which might establish a defamatory meaning, had not been delivered. In addition, it is clear that the Courts will likely grant an element of leeway to publishers on social media that might not be available to publishers on traditional media.