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The dangers of sharing what a little birdie told you: Bercow liable of defamation

The dangers of sharing what a little birdie told you: Bercow liable of defamation

The ruling on a tweet by Commons Speaker's wife Sally Bercow about Tory peer Lord McAlpine caught my eye on Friday.

Bercow’s tweet appeared in November last year, two days after a Newsnight report.  Newsnight did not name Lord McAlpine, but the programme prompted a guessing game on Twitter which resulted in him being falsely accused of child sexual abuse at Bryn Estyn children's home in the 1970s/80s.

The tweet under review was "Why is Lord McAlpine trending? *Innocent face*" and the question was whether it was libellous.

Libel is an English term referring to printed words/images which lower the reputation of an individual in the eyes of the general public.  It can be contrasted with slander which refers to spoken words.  However, in Scotland there is no differentiation between written and spoken words – they are all covered by the term defamation.

Bercow had always denied that her tweet was defamatory.  She claimed that she hadn’t tweeted it with malice, and didn’t intend to libel Lord McAlpine.

But the court held that in its natural and ordinary meaning, the tweet meant that Lord McAlpine was a paedophile who was guilty of sexually abusing boys living in care.

Bercow’s 56,000 followers (not all of whom will have read the tweet) probably knew by 4 November last year three elements of the story told in the Newsnight report - that Steve Messham had been abused at a children's home in Wales some 20 years or so before; that the man he identified as his abuser was a leading Conservative politician from that time; and that the BBC's decision not to name the person Mr Messham identified was the subject of public controversy.  With Bercow telling her followers that she did not know why Lord McAlpine was trending, and there was no alternative explanation for why he was being named in the tweets which produced the trend, the court found it was reasonable to infer that he was trending because he fitted the description of the unnamed abuser.  The judge couldn’t find any sensible reason for including the words “innocent face” in the tweet if they are to be taken as meaning that the defendant simply wants to know the answer to a factual question.  It would have been interesting to know whether the High Court would have considered the tweet without "innocent face" to be defamatory.

Following Friday’s ruling Bercow settled the action by accepting an offer McAlpine’s lawyer had made previously.  The sum has not been disclosed.  McAlpine has already settled claims against the BBC and ITV and he had taken the decision not to pursue Twitter users with less than 500 followers.

This ruling may have surprised some people and might seem unduly harsh, particularly since after realising her error Bercow tweeted her apologies, provided letters apologising for the distress caused and making clear that the underlying allegations were untrue as well as making an offer to settle the case. But as Benjamin Franklin said “Glass, china and reputation are easily cracked and never well mended.”  Whilst Bercow’s actions would normally mitigate the level of damages, once damage is done it’s impossible to repair completely.

The law on defamation can be harsh on those accused of breaching it.  In Scotland once a pursuer has proved that the statement contains a defamatory meaning the law then presumes both falsity and malice.  As a result, there is no common law defence of unintentional defamation.  It therefore doesn’t matter whether a person intended to refer to another person or whether they didn’t intend to defame them if, in fact, that is what happened.  What you intend a tweet to mean is irrelevant, since it’s what people think it means that matters.

Social media users should remember that repeating or communicating defamatory words, even if you are not the person to originally make the comment, means you are liable.  So, for example, “re-Tweeting” a post would be actionable if the comment is found to be unlawful.

This case, once again, raises questions about the limits of free speech on Twitter.  Users often tweet without giving what they are saying much thought.  It’s so easy to type a few words and hit return that people seem to forget that they are still subject to the same defamation laws that apply to every other mode of communication such as newspapers, TV and radio.  Or perhaps Twitter users feel safety in numbers and assume that they can say anything they like and they won’t get sued.

There is a new Defamation Act which was enacted last month.  It applies to England and Wales and, unlike the Defamation Act 1996 which it is broadly replacing, it doesn’t apply in Scotland.  It will be interesting to see how the application of that Act plays out.  But, in the meantime, those wishing to pursue a defamation action in Scotland can still do so under the 1996 Act and common law.

There have been a number of potential and actual civil and criminal actions in the past few years.  Three notable examples which spring to mind are:

1.  Paul Chambers, a trainee accountant, was convicted in 2010 for jokingly threatening to blow up Robin Hood airport. He was later acquitted.

2. Ryan Giggs threatened to sue Twitter users who broke an English court injunction keeping his identity as an adulterer secret.  Again, in this case, ultimately no tweeter lost in court.

3. Chris Cairns, a cricketer, won a defamation case against Lalit Modi, the former chairman of the Indian Premier League, who had accused him of match fixing.  Cairns won £90,000 in damages and his accuser was left with a legal bill of over £1m.  The tweet was only 24 words long.

These examples and the precedent now set by Bercow’s case show how important it is to choose your words carefully when tweeting or using social media more generally.  With re-tweets, internet cache and screenshots, it is very difficult to take back something once it’s put out there.

As always, this all needs to be balanced against the right to freedom of speech.  A comment should not be removed simply because it is unfavourable to a person.  Everyone has the right to an opinion and to express that opinion just pause for thought before you share it!

The full opinion can be accessed here http://bit.ly/12RSKHz

Fiona McAllister
Senior Solicitor


Burness admin