Could 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.
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