Saturday, 25 May 2013

Tweeters beware ~ a defamatory tweet ~ Lord McAlpine v Sally Bercow

Former Conservative Party Chairman Lord McAlpine of West Green brought a libel action against Mrs Sally Bercow - wife of the Speaker of the House of Commons.

On 2nd November 2012, BBC Newsnight carried a story relating to child abuse at Bryn Estyn care home in the 1970s and 80s.  A person perpetrating that abuse was described as a 'leading Conservative from the time.'    Sally Bercow tweeted - "Why is Lord McAlpine trending? *Innocent face*" 

As a preliminary issue, Tugendhat J had to rule whether this 'tweet' was capable of bearing a defamatory meaning.  His ruling is is at Lord McAlpine of West Green v Sally Bercow [2013] EWHC 1342 (QB).   It was necessary to assess the 'tweet' as it might have been understood at the time it was written as opposed to how it might look with the benefit of hindsight.

Tugendhat J said -
'The applicable law is well established and not in dispute. As a matter of law, words are defamatory of a claimant if (1) they refer to that claimant and (2) they substantially affect in an adverse manner the attitude of other people towards the claimant, or have a tendency so to do.'

Words are capable of either their 'ordinary meaning' or an 'innuendo meaning.'

The judge held that the Tweet meant, in its natural and ordinary defamatory meaning, that the Claimant was a paedophile who was guilty of sexually abusing boys living in care. He went on to add - 'If  were wrong about that, I would find that the Tweet bore an innuendo meaning to the same effect. But if it is an innuendo meaning it is one that was understood by that small number of readers who, before reading the Tweet on 4 November, either remembered, or had learnt, that the Claimant had been a prominent Conservative politician in the Thatcher years.'

This judgement is worth reading as an example of how a judge assesses whether words written (or said) may be defamatory.  The context in which the words are written (or said) is crucial.

Inforrm's Blog carries a considerable number of posts relating to defamation law.  For example, the Explanatory Notes to the Defamation 2013 Act are considered here.  See also Hugh Tomlinson QC's consideration of McAlpine v Bercow on the Informm's blog - here - where Tomlinson comments:

The case does, ... , illustrate the risks of tweeting in general and the risks of passing on rumours (or being perceived to pass on rumours) in particular.   As Ms Bercow said in her statement issued after the judgment was handed down

“Today’s ruling should be seen as a warning to all social media users. Things can be held to be seriously defamatory, even when you do not intend them to be defamatory and do not make any express accusation. On this, I have learned my own lesson the hard way”.

Links relating to the story:

Libel actions brought by Lord McAlpine against the BBC and ITV were settled earlier - Digital Spy 18th December 2012 'Lord McAlpine formally settles libel actions ...'

Operation Pallial - BBC 29th April 2013

Joshua Rozenberg discussed the case in The Guardian 24th May 2013 - 'Sally Bercow learns the social media rules the hard way in McAlpine case'

BBC apologises for Newsnight child abuse report - 10th November 2012

Defamation Law:

Defamation Act 2013- the Act is not yet in force.  Commencement Orders are expected later in 2013.  See article on Commencement from Halsbury's Law Exchange.

Global Witness - Defamation Bill becomes law - with link to Libel Reform Campaign's analysis of the 2013 Act

1 comment:

  1. There were many points which the judge did not consider. Meaning is just one part of this. To concentrate solely on this has produced a distorted, disproportionate and wrong outcome, I know of several multiple libel and defendant cases which the judge has concluded there were defamatory statements but ‘the game is not worth the candle’ (ie the costs of pursuing the case outweigh vindication) Given that McAlpine received £310,000 in other settlements for the same libels and Sally Bercow’s tweet was not considered in the context of the totality of the publications and broadcasts, I would suggest the judge has departed from established legal precedent.

    In Smith V ADVFN the judge discussed over-compensation and shared liability of posts in detail. This judge endorsed that decision. I accept the allegations were serious but consider her small involvement in this proper context and surely whatever offer she made must have been reasonable. The judge has also given the green light to other libel claimants to demand damages on a case by case basis rather than apportioning correct and fair liability. That has serious implications for free speech.

    I am not saying that the decision on meaning is wrong technically and legally. That is not the point. It is the failure to look at the wider picture which has been the failure here. Judging by many of the articles I have read most legal commentators also seem to have focused too much on meaning and little on anything else.

    I think the problem here was the way the case was managed and there seemed to be no provision to argue the abuse of process point (which incidentally is an argument which has prevailed in many recent cases) Had a hearing taken place to decide all the issues (as in many other cases) rather than this one dimensional and rigid approach, I believe the outcome might have been very different. Yes I accept that the judge has issued a decision which stands. However hopefully you will agree with me that the outcome of the case is clearly wrong – once you’ve reviewed the guidance above.