A war of words and whiskey: Lobov v McGregor’s lessons for business on injunctions and social media
Gateley Legal NI
Social media’s evolution has irrevocably changed the media landscape and how the court approaches it. Here’s why a recent case between two mixed martial artists provides a cautionary tale for businesses looking to silence reputationally damaging content on social media.
Dublin-born Conor McGregor is no stranger to conflict. As well as being an Ultimate Fighting Championship (UFC) and Cage Warriors champion, the mixed martial artist also took on the world of professional boxing in his highly anticipated fight against Floyd Mayweather Jr, one of the biggest pay-per-view events in history.
Recently, however, McGregor swapped the boxing ring and Octagon for the courtroom in a prolonged dispute with former sparring partner Artem Lobov. Last year closed one chapter of the pair’s ongoing case and provides a useful reminder of the limitations of certain legal tools when making claims of defamation.
Friends, Russians, countrymen
Prior to the dispute, Russian-born retired MMA fighter Lobov had been a long-time friend of McGregor’s. As such, when McGregor came to him requesting advice on a proposed vodka business venture, Lobov was willing to help and put his master’s degree in finance to good use.
Vodka was eventually swapped for whiskey to reflect McGregor’s Irish heritage, a decision that Lobov claims could be attributed to him. “A few people know, but this was actually my idea,” Lobov later revealed to talkSPORT. “I was the person who came up with the idea to do a whiskey for Conor.”
The result, Proper Twelve Irish Whiskey, was a huge success. In April 2021, McGregor and two other investors sold their majority stakes for $600m.
In November 2022, however, Lobov issued proceedings in the High Court claiming there was an agreement in place that entitled him to 5% of the $180m that McGregor alone had made from the sale. He also shared his intention to reveal more in an autobiography, including how he allegedly refused a $1m payment from McGregor as thanks for his help.
“With the whiskey, there was a bit more to the story about how that went about and what happened, but I don’t want to share that yet,” Lobov said.
The gloves come off
In true UFC style, McGregor took to Twitter to label Lobov a “turncoat”, a “little blouse”, a “sausage” and a “rat” in what Lobov and his solicitors claimed to be a “concerted media barrage”.
It was the term “rat”, however, that would require McGregor to defend his comments in the courtroom.
According to correspondence McGregor received from Lobov’s solicitor, McGregor’s tweet meant Lobov was “an informer; a person who has betrayed someone; a person who reveals confidential information; and a person who double crosses.”
In December 2022, Lobov issued defamation proceedings. He also sought an injunction order under Section 33 of the Defamation Act 2009 that, if granted, would restrain McGregor from posting similar content.
Meeting the legal test for Section 33
Section 33 allows a plaintiff to apply for an order prohibiting the publication, or further publication, of a statement deemed, or likely to be deemed, defamatory by the court.
For a plaintiff to succeed, however, the words under scrutiny must bear a clear defamatory meaning. An initial assessment of the evidence should also demonstrate no possible defence.
Even if both requirements are satisfied, the court maintains a discretion to grant or refuse an application. Historically, judges have demonstrated a reluctance to restrain free speech prior to plenary trial.
The threshold for meeting Section 33 requirements is also high, as illustrated by a 2021 case between Beaumont Hospital and Gemma O’Doherty, an Irish far-right activist and conspiracy theorist.
O’Doherty had posted three videos online alleging serious criminal activity at Beaumont, including denying life-saving treatment to patients and administering lethal injections of the Covid-19 vaccine.
Focusing on her defence of truth, the court noted that her right to hold an opinion did not extend to allegations of criminality that were “utterly devoid of substance” and based on opinion, not fact. As such, O’Doherty was deemed to have no defence that would be reasonably likely to succeed, and thus an Injunction Order was granted.
In Lobov’s case, however, McGregor’s comments were not baseless accusations of criminality, but rather “part of a rant by a trash-talking MMA fighter”, according to the court.
In addition, the court held that a stand-alone tweet could not harm Lobov’s reputation in the eyes of reasonable members of society and should be considered as “more akin to idle chatter than significant statement” due to the speed and context in which it would be written and read. The court also deemed it inappropriate to analyse the meaning of the tweet as one would an extract of a newspaper, and so any decision on the meaning of the words would need to be based on a lay-person’s analysis.
Lobov’s application for an injunction was dismissed. “Well there ya go, Stuart little,” McGregor tweeted after the decision was announced. “You now owe me two major court appearance fees. Stop this nonsense.”
A lesson in planning
The high bar for meeting a Section 33 injunction makes it highly unadvisable to rely on this as a tool for protecting one’s online reputation, particularly if the target for the injunction is comments made by an individual on social media.
As a barrier to freedom of expression, injunctions are usually reserved for the most serious instances of defamation in which the plaintiff can demonstrate beyond reasonable doubt that no defence will succeed.
Posts will also be viewed as read by a reasonable person, so the meaning complained of must be the precise meaning taken from the comments. Even where meaning is not an issue, however, plaintiffs should be confident that their case will beat numerous defences, including truth, honest opinion, and public interest.
Unless a business is facing unfounded accusations of criminal activity, such as the ones levelled at Beaumont by O’Doherty, it is likely that any potentially defamatory comments will remain visible to the public until a decision is reached in the plenary trial.
As such, it is important that businesses work with legal and communications specialists to mitigate the reputational damage of harmful social media content, whether that is by preparing statements for the press or liaising with social media platforms to remove and/ or block the offending material.
A court-ordered injunction is rarely guaranteed, so it is worth having a few signature moves at hand to protect a business’s reputation online.
This article was authored by Jonathan Jackson, and Paul Kerr.