UK Court Finds Tweet Libelous Because Of Implied Meaning

twitter-legal-lawCould a tweet that doesn’t say anything overtly defamatory get you sued for libel in the UK? The answer is yes.

In what appears to be the first case of its kind, a UK court has found that the implications of a tweet (against the backdrop of its larger context) could be the basis for a finding of libel and damages against a defendant.

Here’s the tweet in question: “Why is Lord McAlpine trending? *Innocent face*” There’s nothing overtly libelous about this. Rather, the implications behind the tweet were found to be defamatory.

Now, the factual background: A November 2012 BBC report about sexual abuse, at a foster home in Wales, asserted that one of the sex offenders was “a leading Conservative [politician] from the time.” The program didn’t identify the politician by name though it used a number of other similar suggestions of who it might be.

Later, that politician’s identity was the subject of speculation on Twitter among other places online. A number of people on social media asserted that the identity of the unnamed public official was Lord McAlpine of West Green. Among others commenting on this speculation was Sally Bercow, the wife of the UK Parliament’s Speaker of the House of Commons.

She posted the tweet above.

McAlpine was, in fact, innocent; but, because he was impliedly named in the BBC report (the UK’s Guardian newspaper published that he was the figure in the BBC report), the broadcaster settled a potential defamation case with him and issued an apology. Another UK broadcaster, ITV, had cited him among the potential list of people whom it could be and also settled with McAlpine.

McAlpine sued Bercow over the tweet; and, roughly two weeks ago, the High Court of Justice found that the tweet was libelous. The case then settled.

In the US, this tweet could never be the basis of a finding of defamation on behalf of a public figure. However, libel laws in the US and UK are different. The Wall Street Journal laid those differences out succinctly in a 2009 article criticizing UK law:

Unlike in the United States, where plaintiffs have to prove that the defendant’s statement is willfully false and defamatory, the burden of proof is reversed in Britain. According to U.K. libel laws, the plaintiff has to show only that the statement harms his reputation — which is the case with almost any accusation, true or false. It is the defendant who must then prove that his allegations were not libelous.

The court explained the two parties’ competing positions in the case:

  • The Claimant’s [McAplpine's] case is that in their natural and ordinary meaning, and/or in the alternative, by the way of innuendo [ ] the Tweet meant that he was a paedophile who was guilty of sexually abusing boys living in care.
  • The Defendant [Bercow] denies that her Tweet meant that, or that it meant anything defamatory of the Claimant. Her case is that the question she asked in her Tweet was simply a question. She accepts that the question implied that the Claimant was trending, but that by itself is entirely neutral, and there is nothing else to be inferred from the question she asked. Her question does not suggest any reason why the Claimant was, or might have been, trending. Her question was as neutral as the statement on the Twitter screen itself which listed the Claimant under the heading “Trends.”

Perhaps the most incredible thing about this ruling is that it takes into account facts and information that the tweet impliedly refers to without stating directly (the BBC program and its implications as well as others’ social media speculations about the sex offender’s identity). Thus, the broader “context” of a tweet becomes a basis for a finding of defamation as much as the language of the tweet itself.

As unfortunate as the ruling may be, it’s consistent with the history of UK (and broader European) law that protects reputation at the expense of other values, such as speech. Twitter was not a party to the lawsuit.

Related Topics: Channel: Social Media Marketing | Legal | Legal: Censorship | Top News | Twitter: Legal

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About The Author: is a Contributing Editor at Search Engine Land. He writes a personal blog Screenwerk, about SoLoMo issues and connecting the dots between online and offline. He also posts at Internet2Go, which is focused on the mobile Internet. Follow him @gsterling.

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  • Doc Sheldon

    If the UK court sees Sally Bercow’s tweet as libelous, for simply mentioning that Lord McAlpine was trending, then one could assume that a suit against Twitter for showing him as trending would be equally valid.

    While I can see a certain logic in the UK’s definition of harm to one’s reputation, this finding seems to me to set a dangerous precedent. Does legal precedent carry the same sort of weight in the UK as it does in the US?

  • gregsterling

    I’m not familiar enough with UK law to definitively answer the question. But the UK and US systems are built on common law and apply similar concepts. So my guess would be that it has potential weight as (a dangerous) precedent.

  • loverat

    The decision on meaning may be correct (but harsh) but the whole outcome is wrong. This is because the case was aparently managed in such a way that the tweet was not considered in the wider context of the compensation received to date and the totality of the publications. Do not confuse this with a damages hearing which would have taken place if SB had not given up. I am talking about the ‘abuse of process’ argument which has been used in numerous libel cases on the basis that the ‘game is not worth the candle’ and the cost of pursuing this one individual publication was disproportionate to any further vindication which could have been achieved.

    The guidance is set out clearly in previous cases – most notably Smith V ADVFN. In cases which involve multiple publications and defendants, you cannot proceed in the traditional way and on the assumption the damages are payable if the tweet is defamatory. As the judge noted in Smith V ADVFN, in these cases, you have to stand back and look at the litigation as a whole and in its proper context. For example does anyone really believe this tweet made a difference in the context of the number of tweets and publications and what happened before? (the broadcasts and rumours for years) I seriously doubt it. And what about the danger of over-compensation? If this ruling is followed there is nothing to stop McAlpine and others demanding £50k from everyone involved. That was specifically addressed by the judge in Smith V ADVFN where he suggested that the administration of justice could be brought into disrepute if litigation against multiple defendants was not brought under proper control and management.

    This outcome is the most ridiculous I have reviewed for some years and either the judge simply took a dislike to the defendant or the departure from established legal precedent represents a return back to the dark days. I am simply stunned that a top judge could get it so wrong.

  • loverat

    “As unfortunate as the ruling may be, it’s consistent with the history of
    UK (and broader European) law that protects reputation at the expense
    of other values, such as speech. Twitter was not a party to the lawsuit”

    I should have probably made myself a bit clearer with my comments about legal precendents etc. I think the above statement was true up until about 5 years ago but more recently the High Court generally has struck a better balance between the right to reputation and free speech. In the last 3 years, there have been a very high number of libel cases struck out early for abuse of process. More common sense decisions, ‘context’, ‘proportionality’, ‘economy and restraint’ being words used often by judges to strike out cases. In 2010 in England and Wales 81% of defendants won their cases.

    That is why this decison defies logic and belief and why I think the comment in the article is probably not quite as true as once it was.

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