UK: What’s The Meaning Of All This? The Mcalpine V Bercow ‘Tweet’ Libel Action

Last Updated: 7 June 2013
Article by Nick Armstrong

The Lord, the Speaker's wife, the asterisks and a moron in a hurry....

In Court recently has been the libel action brought against Sally Bercow, former Celebrity Big Brother contestant and wife of the Speaker of the House of Commons, by Lord McAlpine, former Deputy Chairman of the Conservative Party and a prominent Tory in the 1970s and 1980s.

Lord McAlpine was successful in a judgment given on 24 May 2013.

Background

Readers will recall that on 2 November 2012, the BBC's "Newsnight" broadcast a report which made serious allegations against 'a leading Conservative politician from the Thatcher years'. The programme alleged that this politician was guilty of sexually abusing boys living at the Bryn Estyn care home in Wales in the 1970s and 1980s. Newsnight did not name the politician and, towards the end of the report, the presenter said it did not have enough evidence 'to name names'.

There was a frenzy of speculation, including on social media such as Twitter. On 4 November 2012, Mrs Bercow tweeted the following:

Why is Lord McAlpine trending? *Innocent face*

Her Twitter account had approximately 56,400 followers.

The libel action commenced on 7 December 2012, Lord McAlpine claiming damages over the Tweet.

There have been two hearings recently, both arising from the fact that key factor in the action was a disagreement about whether the Tweet bore a defamatory meaning or not.

Hearing 1 - Procedure

The first was about procedure. On 25 April 2013, Mr Justice Tugendhat ruled that there should be a separate trial of that preliminary issue about meaning. This is not a new approach but the judgment indicates that it is likely that this "will become a standard feature of defamation litigation".

One reason is that the Defamation Act 2013 (which was passed the same day as the hearing) will once in force provide that defamation actions should normally be tried without a jury. Click here see our previous bulletin.

In theory, the question of meaning used always to be one of the questions for the jury - but in future, without the need for a jury, it will almost always make sense for the judge to rule on any dispute about meaning as early in a libel action as possible - in order, as Tugendhat J said, to fulfil "the overriding objective to achieve justice... [which] includes saving expense, dealing with a case proportionately with the importance and complexity of the case, dealing with it expeditiously and fairly, and allotting to it an appropriate share of the court's resources."

Hearing 2 - Trial of the preliminary issue as to Meaning

This hearing took place on 16 May. The judgment was released on 24 May, and Tugendhat J found in favour of Lord McAlpine: the Tweet had defamed him.

In a succinct summary of the law relating to 'defamatory meanings', the judge set out the legal rules on interpreting the meaning of words complained of, which apply to online material just as they do to any other published statements.

He cited the key judgment of Sir Anthony Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130:

"The legal principles relevant to meaning have been summarised many times and are not in dispute.... They may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.

(3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any "bane and antidote" taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question."

Tugendhat J found it "important... to stress point (6). The Tweet was not a publication to the world at large, such as a daily newspaper or broadcast. It was a publication on Twitter. The hypothetical reader must be taken to be a reasonable representative of users of Twitter who followed Mrs Bercow".

Another important legal principle in the case was the so-called "Repetition Rule" - as Tugendhat J put it, "a defendant who repeats a defamatory allegation made by another is treated as if he had made the allegation himself" (or herself).

Lord McAlpine's counsel had argued that, as a result of (a) the notoriety of the case at the time (due to press and social media comment arising out of the Newsnight report), (b) knowledge of Twitter users that wrongdoing had in other cases in the past been unmasked using Tweets and (c) the 'nudge nudge wink wink' nature of the Tweet, only a 'moron in a hurry' would have failed to read Mrs Bercow's tweet as meaning that he was "a paedophile who was guilty of sexually abusing boys living in care."

("Moron in a hurry" is actually quite a well-established legal concept, used since the 1970s - he's the sort of legal antithesis of the rather older-fashioned and more reasonable "man on the Clapham omnibus").

Opposing this, Mrs Bercow denied that her Tweet had that meaning, and indeed that it meant anything defamatory of the Claimant. Her counsel argued that the question asked in her Tweet was simply that: a question. She accepted that the question implied that 'Lord McAlpine' was trending, but that by itself that was entirely neutral, and that there was nothing else to be inferred from the question she asked.

The judge found that the Tweet could not be read in that way, in isolation from the general knowledge of the people following Mrs Bercow on Twitter and reading the Tweet complained of.

He decided that the Newsnight report and the media reporting prior to the Tweet had to be treated as part of the general knowledge of her followers who read the Tweet on 4 November 2012.

He decided that those followers "are probably very largely made up of people who share her interest in politics and current affairs. They probably are people who, by 4 November, knew these elements of the story told in the Newsnight report: in particular, that an individual who had been abused at a children's home in Wales some 20 years or so before had identified his abuser to be a leading Conservative politician from that time" and that a controversial decision had been made by the BBC not to name that politician. Further, Tugendhat J had to rule on the significance of the asterisked phrase in online parlance. He described the effect of the asterisks in this context to indicate that "the words 'innocent face' are to be read like a stage direction, or an emoticon (a type of symbol commonly used in a text message or e-mail). Readers are to imagine that they can see the Defendant's face as she asks the question in the Tweet."

He found that the reasonable reader would understand the words "innocent face" as being insincere and ironical. There was, he said "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."

Further, the judge noted that 'trending' is defined by Twitter as figuring in the list of names of individuals and other topics which appears on each Twitter page, generated by an algorithm which "identifies topics that are immediately popular, ...the hottest emerging topics of discussion on Twitter".

Putting all this together, Tugendhat J decided that:

"a follower of Mrs Bercow's Twitter account, reading the Tweet, would infer that Lord McAlpine was trending because he fitted the description of the unnamed abuser: the reader would reasonably infer that in her Tweet, Mrs Bercow had provided the last piece in the jigsaw" following the anonymous allegation made in the Newsnight programme two days earlier.

As a result, he found that "the effect of the repetition rule is 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. It is an allegation of guilt. I see no room on these facts for any less serious meaning".

His judgment was therefore that the Tweet "meant that Lord McAlpine was a paedophile who was guilty of sexually abusing boys living in care."

The judge went out of his way to state that the parties and the public at large accept that Lord McAlpine is "entirely innocent of any of the very serious crimes of which the children in Wales were undoubtedly the victims"... and that it "is one of the most seriously defamatory allegations which it is possible to make against a person".

The immediate effect of the judgment is reportedly that Mrs Bercow has accepted an offer to settle the matter, bringing the action to an end - which, going back to the procedural hearing earlier in the year, highlights the contribution to the prompt resolution of libel complaints which can be made by 'trials of preliminary issues'.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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