Monday 17 June 2013 by Julian Pike
On 24 May Mr Justice Tugendhat handed down the judgment in McAlpine v Bercow  EWHC 1342 (QB), finding that Mrs Bercow's tweet carried a defamatory meaning. Following the judgment it was announced that Bercow had accepted an earlier settlement offer, saying that 'today's ruling should be seen as a warning to all social media users'. Although Twitter litigation is no longer new (the site has been the form of publication in a number of cases, most notably Cairns v Modi  EWHC 756 (QB)), McAlpine is the first to really tackle the peculiar nature of this social media genre and could mark a key moment in social media use.
In Cairns, allegations of match-fixing made over Twitter were fairly straightforward and the debate over the meaning was limited, with the defendant pleading justification. In McAlpine, the court had just seven words to deal with, two of which read as a descriptive 'emoticon': 'Why is Lord McAlpine trending? *Innocent face*'. In interpreting the meaning of the tweet the court looked at the fairly unique nature of the audience to which it was published.
The judge found that Bercow's followers were probably people who shared her interest in politics and current affairs and who, by the date of the tweet, would also be familiar with the key elements of the Newsnight story which ignited speculation over the identity of an unnamed senior Conservative politician accused of child abuse on the programme. They were also likely to have prior knowledge of the claimant as a senior Conservative politician from the Thatcher years.
However, and significantly, the judge held that it was not necessary for the reader of the tweet to have any prior knowledge of the claimant in order to link the tweet with the Newsnight report. This was because the tweet identified him by his title, Lord McAlpine. It is, the court said, common knowledge that today's peers are generally people who have held prominent positions in public life, often in politics.
The tweet, the court said, asked why Lord McAlpine was trending in circumstances where (1) he was not otherwise in the public eye; and (2) there was much speculation as to the identity of an unnamed former senior politician. In this context the reasonable reader would understand the words '*Innocent face*' to be insincere and ironic, there being no sensible reason for including them if the defendant had simply wanted to know the answer to a factual question. The court held therefore that it was reasonable for the reader to infer that the claimant's name was trending because he fitted the description of the unnamed abuser.
The tweet picked up the allegation made by Newsnight, which was that abuse had taken place, as an allegation of guilt. Accordingly, the court saw no scope for any less serious meaning and found the tweet to mean that the claimant was a paedophile who was guilty of sexually abusing boys living in care. Alternatively, if this was wrong, the tweet bore an innuendo meaning to the same effect to those readers who before 4 November knew that the claimant was a prominent Conservative from the Thatcher years.
Given the implied nature of the words, it might be surprising that the ruling was so categorical. In determining meaning the judge is not tied to those meanings put forward by the parties but must make up his own mind. Following Chase v News Group Newspapers Ltd  EWCA Civ 1772, the judge could have found the words to have a lesser meaning, namely that there were reasonable grounds to suspect guilt, or the lesser meaning of grounds to investigate. Instead he came down firmly on a meaning of actual guilt, seemingly due to the, ostensibly at least, harmless looking '*Innocent face*' appended to the tweet.
The decision highlights the risk of using emoticons and other such devices which demonstrate the state of mind or intention behind a tweet. Twitter users must stop and think and give regard to the state of knowledge of their readers. It is all very well being ironic or 'winking', but if this is understood to be adopting an allegation or identifying a connection between a person and the alleged wrongdoing, liability can easily follow.
Without a public award of damages it remains to be seen whether users of social media will now take on board that the consequences of our libel law apply equally to social media as to more traditional media, but clearly they should. It was reported that Bercow's total bill for her ill-judged tweet exceeded £100,000, meaning each character used cost her more than £3,000. With 56,000 followers, Bercow could have expected a judge to have awarded a high five-figure sum, if not more. It is worth noting that Modi was ordered to pay Cairns £90,000, which took account of not only the seriousness of the allegation, but also the 'viral' nature of Twitter. Tweeters be warned.
Still the wild west?
If McAlpine is a warning shot from the civil system, the recent prosecution of Neil Harkins and Dean Liddle for contempt is the criminal equivalent. Both had attempted to identify Jon Venables and Robert Thompson, the killers of James Bulger, with Harkins posting on Facebook and Liddle via Twitter. Both were in breach of a worldwide injunction banning the publication of any information relating to the new identities of the pair. Both received suspended sentences of nine months in April this year.
These cases are a sign of the increasing need and willingness of claimants and prosecutors alike to tackle the growing problem of social media publication, often referred to as the 'wild west' of publishing.
Bercow, Harkins and Liddle all removed their tweets with the threat of legal action, meaning there was no need for any substantive action against Twitter itself.
US-based Twitter tends to ignore takedown requests, even in the face of seriously defamatory allegations made on its site. The Court of Appeal handed down judgment in Tamiz v Google  EWCA Civ 68 in February this year, in which the court established that the site operator cannot rely on section 1 of the Defamation Act 1996 once they are on notice of the defamatory content. Twitter sooner or later is going to be forced to deal with claims, particularly if the poster will not remove content.
Julian Pike is head of reputation management at law firm Farrer & Co