On Friday, 24 May the High Court ruled that Sally Bercow’s tweet “Why is Lord McAlpine trending? *innocent face*” (the “Tweet“) was defamatory. The ruling followed a preliminary hearing on the meaning of the Tweet. The background to the case is that Lord McAlpine pursued a number of Twitter users, including Sally Bercow, who had re-tweeted false accusations linking him to the Saville child-abuse scandal.
In a defamation claim, words may have a natural and ordinary meaning or an innuendo meaning. The natural and ordinary meaning does not require the support of any additional facts, whilst an innuendo meaning implies more than is apparent on the face of the words and requires a reader to know other, external facts. To make out its case the Claimant has to prove that these extra facts were known by readers.
The Claimant’s case was that the Tweet was defamatory on either meaning. On a natural reading, the Defendant’s use of the phrase “innocent face” indicated that the words should be read as having the opposite of their literal meaning. On the “innuendo meaning” a substantial number of Twitter users could identify the Claimant given that a Newsnight report two days earlier had implicated a senior Conservative politician from the “Thatcher era”. The Claimant also pointed out that a reasonable reader would ask themselves what the Tweet was about “if it was not pointing the finger of blame at the Claimant”.
The Defendant’s case was that her Tweet was genuinely questioning why Lord McAlpine was “trending” on Twitter (i.e. showing up on screen in a list of most popular topics). Given that Lord McAlpine’s political career had ended many years earlier, this was a reasonable question and as she wrote the Tweet before the “blanket coverage” of the issue, the words were “consistent with her having noticed he was trending, but not having investigated the reason.” The Defendant also pointed out that the Newsnight report and media coverage had not identified the Claimant. The Defendant did not run any other defences.
In its judgment, the Court restated the well-known test for defamation namely that words are defamatory if they refer to the person and “substantially affect, in an adverse manner the attitude of other people towards the claimant, or have a tendency so to do.”
The Court held that followers of the Defendant’s blog would largely be people interested in politics and current affairs and so would be aware of the Newsnight report. However, such knowledge was unnecessary given that the Tweet asked why a named Lord was trending when he was not in the public eye and there was speculation about the identity of a child abuser who fitted the Claimant’s profile. The Court found that the reader “would reasonably infer that the Defendant had provided the last piece in the jigsaw” in explicitly naming the Defendant. The Court also agreed that the words “innocent face” would not be included if they simply meant that the Defendant wanted an answer to the question posed. The Court found that, on its natural and ordinary meaning, the Tweet meant that the Claimant “was a paedophile who was guilty of sexually abusing boys” and was an “allegation of guilt”. It was, therefore, plainly defamatory. The Court’s judgment made it very clear that the Defendant had accepted, as had the public, that the Claimant was entirely innocent.
Ms Bercow has stated that she is “surprised and disappointed” by the ruling, but has confirmed that she will now settle the claim. This is the latest in a string of cases involving individuals being sued for statements made on social media sites and highlights that extreme caution is needed when making public statements in any forum. Under the new Defamation Act, operators of websites may also find themselves being sued if defamatory statements are posted on their sites. It may, therefore, be that an increasing number of libel cases will be brought in the social media context. Ms Bercow herself has issued a word of caution: “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.”
For a cross-border look at defamation law and social media, see the Global Media & Communications Quarterly