Sally Bercow & Twitter: not such an “innocent face”

On 4th November 2012, Sally Bercow tweeted: “Why is Lord McAlpine trending? *Innocent face*”. Those 46 characters and 7 words led to a costly libel action involving no less than 2 lengthy Court hearings. The decision demonstrates the care required when using twitter and its perils.

Bercow’s tweet was published by her following the BBC’s broadcast on 2nd November 2012 of a Newsnight Report which reported upon a allegation of child abuse in the 1970s and 1980s made in relation to “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” and “a prominent Tory politician at the time”. It later transpired that it was a case of mistaken identity. The BBC did not name the individual the allegations were made in relation to.

Following the broadcast of Newsnight, speculation was rife as to the identity of the individual the subject of the programme. The Court ruled that:

(a) there were a substantial number of viewers of Newsnight;

(b) a large number of people would have been aware as to media reports regarding the Newsnight broadcast;

(c) the people who viewed the Newsnight programme and people who read the newspaper articles included a number of readers of Bercow’s tweet.

It was also considered that large numbers of Bercow’s followers would have shared her interest in politics and current affairs. The Court therefore decided that the seven words referred to above defamed the Claimant in that they would be understood to mean that the Claimant was a paedophile who was guilty of sexually abusing boys living in care. The tweet itself did not explicitly refer to the Newsnight programme or the allegations made. It did, however, refer to speculation and as to the fact that Lord McAlpine was being linked to the allegations.

The decision demonstrates the perils of commenting upon speculation on Twitter. Not only did the Court rule that seven seemingly anodyne words were defamatory of Lord McAlpine, it ruled that they bore a highly defamatory meaning. In this respect, the Court did not consider that Bercow’s tweet suggested that there were grounds to suspect or investigate the allegations, it considered that Bercow was making the allegations of child abuse herself by completing the jigsaw. The Court also found that readers of the tweet generally would have understood the tweet to bear the meaning found by the Court. It did not consider that the Claimant needed to establish that readers knew any additional information (over above what was stated in the tweet) as the readers of the tweet would have been aware of the background in any event. This is surprising, particularly bearing in mind a large number of people would have no idea as to who Lord McAlpine was until after the scandal erupted, but such a decision would have been difficult to determine upon appeal. The Court did not determine damages as the case settled after the decision as to meaning was made. Given this and the seriousness of the allegations, the damages would have been substantial.