Guidance for Twitter Users: McAlpine v Bercow a Cautionary Tale

The case of McAlpine v Bercow makes it clear to Twitter users that defamatory comments which they post will not just be brushed off as harmless coffee table chat and can potentially lead to a law suit against them.

Defamation proceedings can be lengthy and costly, and it is therefore imperative that Twitter users are cautious of making any false comments which can be construed as direct or indirect accusations of a defamatory nature against an individual.

Basic Defamation Rules to Remember

The laws of defamation will be applied to a Tweet just as they would to any other publication.

Words have the potential to be defamatory if:

1. They refer to an identifiable individual;
2. They would lower that individual in the estimation of right thinking members of society generally; and
3. They are published, meaning communicated to another person.

While certain defences are available, Twitter users, especially those with a large following such as Mrs Bercow, should take precaution in posting Tweets which meet the above criteria.

Indirect or Innuendo Statements Can be Defamatory

The scope of defamation is broad; words in their ordinary and natural meaning as well as words with an innuendo meaning can potentially be defamatory.

The interpretation of indirect statements or innuendo is an important consideration given the way Twitter is used. The very nature of Twitter, being limited to 140 characters, means that much of what is communicated is implied. This can either be through general conventions that have arisen through the shortening of expressions to better serve mediums such as Twitter and text messages, or through the individual’s use of particular expressions relating to the circumstances.

In the case of Sally Bercow the words “innocent face” were considered to be a stage direction which made the initial question insincere and ironical. Followers who shared her interest in politics and current affairs would have been aware of what and who she was alluding to, but it was not necessary for a reader of the Tweet to have had any prior knowledge of the Claimant.

Innocent Intention Irrelevant

Twitter users should also recognise that harmless intention is no defence if actual harm is likely to have been caused. Users need to tread carefully and give appropriate thought as to how their statements might be interpreted by readers whatever their intention; that interpretation will be taken into account in deciding whether the statement is defamatory. This is particularly important if the nature of an allegation is very serious.

Mrs Bercow’s insistence that her tweet was strictly innocent and she had no intention of accusing Lord McAlpine was irrelevant. In any event, the judge held that followers of Mrs Bercow would have interpreted her statement as mischievous and sarcastic, wrongly implying that Lord McAlpine was linked to sexually abusing children.

Conclusion

If in doubt, do not publish. Alternatively, seek legal advice before publishing.

Businesses using social media should have strict policies in place to avoid the risk of defamation proceedings. For more information please contact us on 0207 611 4848.