A British judge's decision that a tweet by Sally Bercow (wife of the Speaker of the House of Commons, John Bercow) libeled Lord Robert Alistair McAlpine (former Deputy Chairman and Party Treasurer of the Conservative Party and an aide to Prime Minister Margaret Thatcher) shows -- if anyone still had doubts -- that tweets can indeed be libelous. In doing so, the ruling provides a good model for analyzing Twitter posts to determine whether they are defamatory.
The case stemmed from a Nov. 2, 2012, BBC report on alleged sexual abuse at a foster care home in Wales in the 1970s and 1980s. A victim of the abuse alleged that one the abusers was a "leading Conservative from the time." The abuser was also referred to as "a leading Conservative politician from the Thatcher years," "a senior public figure," "a shadowy figure of high political standing," and "a prominent Tory politician at the time." While the BBC report did not name the alleged abuser, the identity of the alleged abuser was leaked to the political editor of Britain's Channel 4, who tweeted that the alleged abuser -- also without identification -- denied the claims.
But speculation was rampant on social media, with many naming Lord McAlpine as the alleged abuser. Bercow's tweet, "Why is Lord McAlpine trending? *Innocent face*," was sent two days after the BBC report aired.
Then, on Nov. 9 -- one week after the BBC report aired -- The Guardian reported that the unnamed politician was indeed Lord McAlpine, but that the victim had realized that he was mistaken in the identity of his abuser. The same day, the BBC's director general resigned. On Nov. 12, the BBC apologized and reached a settlement with Lord McAlpine. (Broadcaster ITV also settled after including Lord McAlpine in a list of names speculated on social media to be the unnamed politician.)
Lord McAlpine sued Bercow, and on May 24, 2013, the High Court of Justice (Queen's Bench Division) ruled that Bercow's tweet was defamatory. The decision was a preliminary ruling on the meaning of the tweet and did not address questions of damages. Bercow did not advance any defenses, such as a defense of truth.
High Court Justice Sir Michael George Tugendhat -- the court's "senior media judge" -- began his decision by explaining the meaning of the tweet, including the definition of "trending," which he explained was a description of a subject popular on Twitter. He also explained the "*Innocent face*" portion of the tweet:
It is common ground between the parties 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. The words direct the reader to imagine that the expression on her face is one of innocence, that is an expression which purports to indicate (sincerely, on the Defendant's case, but insincerely or ironically on the Claimant's case) that she does not know the answer to her question.
Justice Tugendhat examined the context of the tweet, as well as the nature of the audience of Bercow's online followers, and concluded that
... 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.
[W]here the Defendant is telling her followers that she does not know why he is trending, and there is no alternative explanation for why this particular peer was being named in the tweets which produce the Trend, then it is reasonable to infer that he is trending because he fits the description of the unnamed abuser. I find the reader would infer that.
This led Justice Tugendhat to conclude that the tweet did, indeed, either state or imply that Lord McAlpine was a sexual abuser, and thus was libelous. Although the Court made no findings on damages, the decision led the parties to settle the case a few days later.
But the ruling makes clear that even though a tweet is limited to 140 characters, such short statements can, indeed, be defamatory. And that in making this determination, courts should look at not only the actual content of the tweet, but also the context in which is it made: including the character of the audience and the norms of Internet communication.
In short -- appropriate for Twitter -- a libel is a libel, no matter how few characters it contains.
Eric P. Robinson teaches media law and ethics at the CUNY Graduate School of Journalism and Baruch College, and is of counsel to the Counts Law Group. He was previously Deputy Director of the Donald W. Reynolds National Center for Courts and Media at the University of Nevada, Reno. Eric is a media and internet law attorney with extensive experience analyzing and writing on media, internet and freedom of expression issues, including tracking media and internet litigation and legislation. He also blogs at bloglawonline.com.