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In the recently published decision of  The Lord McAlpine of West Green v Sally Bercow [2013] EWHC 1342 (QB) the UK High Court ruled that a tweet published by Sally Bercow, the wife of the speaker of the British House of Commons, which falsely linked Lord McAlpine with an allegation of child sexual abuse was defamatory.

The case reported that on 4th November 2012, Sally Bewcow, the defendant, published a tweet which read “Why is Lord McAlpine tending? *Innocent face*. At the time of publication she had over 56,000 followers. On the evening of 2nd November 2012 the BBC’s current affairs programme Newsnight broadcast a report which included a serious allegation of child abuse. The allegation was made by a complainant who alleged that one of his abusers was a person who was variously referred to in the Newsnight report by expressions such as a “leading Conservative from the time”, ” a leading Conservative politician from the Thatcher years”, “a senior public figure”, “a shadowy figure of high political standing”, “a prominent Tory politician at that time”. It was ultimately the case that the person who abused the complainant was not in fact a politician. The claimant Lord McAlpine had vehemently denied that he was ever engaged in the sexual abuse of anyone and that was accepted by the defendant after 4th November 2012.

At the time a series of articles were published online by a number of newspapers including the Guardian, the Telegraph, the sunday Telegraph and the mail online website.

What the Parties Contended that the Tweet Meant

The claimant contended that in their natural and ordinary meaning, 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 denied that the tweet meant that or that it meant anything defamatory of the claimant. Her case was that the tweet was simply a question and that there was nothing to be inferred from the question asked.

What does the Law Mean by the Word Defamatory

Mr Justice Tugendhat noted that “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 to do so”.

The court referred to a series of cases Rubber Improvements Ltd and Lewis v Daily Telegraph Ltd [1964] AC 234 where the House of Lords held that the articles at issue could not mean that the plaintiff’s were guilty of fraud. Lord Devlin stated at p286 of the judgement “if the ordinary sensible man was capable of thinking that wherever there was a police inquiry there was guilt, it would be almost impossible to give accurate information about anything”. The court also referred to three different levels of possible defamatory meaning which was explained by the Court of Appeal in Chase v Newsgroup Newspapers Limited [2003] EMLR 218, [2002] EWCA Civ 1772.

The Court also noted the repetition rule which provides that a defendant who repeats a defamatory statement made by another is treated as if he made the allegation himself as set out in the case of Flood v Times Newspapers Ltd [2012] UKSC 11. The Court noted however that the rule of reportage could temper the rule of repetition whereby the public interest could justify publication and did not turn upon the content or the truth of those allegations. The Court noted that the defendant did not raise a defence or privilege or reportage in this case.

Justice Tugendhat looked at the issue of natural and ordinary meaning and innuendo meaning in respect of words used for the purposes of defamation. He noted “in the present case the tweet would mean little to a reader who had no knowledge of any of the claimant, the newsnight broadcast or of the media reporting of the newsnight broadcast in the period immediately preceding the tweet. So in the present case I have to decide whether the newsnight report and the media reporting are to be treated as part of the general knowledge of the defendant’s followers who read the tweet on 4 November 2012, or whether they are to be treated as extrinsic facts…….”. The Court referred to the case of Fullam v Newcastle Chronicle & Journal Ltd [1977] 1 WLR 651 in this regard.

The court looked at the test of “reasonableness” and the hypothetical reader who “is not naive but he is not unduly suspicious”. The claimant stated that the followers of the defendant were likely to be a significant number who shared her interest in politics and current affairs and the fact that the defendant’s followers used twitter implied that they were likely to be up to date with politics and current affairs.

Submissions on behalf of the Claimant

The claimant contended that “a reasonable reader of the a tweet, or anything else, does not just look at the words. A reasonable reader would ask him or herself what the tweet is about, if it was not pointing the finger of blame at the Claimant. And there would not be a reasonable alternative meaning that would spring to mind”. In essence the claimant contended that even if the tweet is “not defamatory in its natural and ordinary meaning…that it is defamatory in an innuendo meaning to that substantial number of readers who did know of the newsnight report and the other media reports referred to above”.

Submissions on behalf of the Defendant

The defendant contended that the words “innocent face” were to be read literally and that “….the reasonable reader of the tweet would not understand the defendant to be referring to allegations in the newsnight report or suggesting any wrongdoing.

Judgement

Justice Tugendhat noted that “in my judgement the reasonable reader would understand the words “innocent face” as being insincere and ironical. There is no sensible reason for including those words in the tweet if they are to be taken as meaning that the defendant simply wants to know the answer to a factual question”. He further noted that it was reasonable to infer that the claimant was trending because he fitted the description of the unnamed abuser and that “the reader would infer that”. The court noted that “the reader would reasonably infer that the defendant had provided the last piece in the jigsaw”.

In looking at the seriousness of the allegation that the claimant fitted the description of the unnamed abuser, Justice Tugendhat stated “the effect oft he repetition rule if that the defendant, as the writer of the tweet, is treated as if she had made, with the addition of the claimant’s name, the allegation in the newsnight and other media reports which had previously been made without his name. Is is an allegation of guilt…..”. He noted that the defendant did not plead a public interest defence such as Reynolds privilege or reportage.

In conclusion the court ruled “It follows that, for those reasons, I find that the tweet meant, in its natural and ordinary defamatory meaning, that the claimant was a paedophile who was sexually abusing boys living in care. If I were wrong about that, i would find that the tweet bore an innuendo meaning to the same effect”.

It was reported in various media over the weekend that an undisclosed financial settlement will be made to a charity of Lord McAlpine’s choice and that the defendant, Sally Bercow will also have to make a statement of apology in open court at a later date.

The above judgement serves as a timely reminder to social media users that statements made via twitter or other social media fora can be held to be defamatory even where there was no intention to do so.

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