Tweet in haste/repent at leisure

Rodney Hylton-Potts writes

On 24 May 2913 the High Court decided that the Speaker’s wife, Mrs. Bercow’s tweet carried a defamatory meaning. McAlpine v Bercow is the first case to really tackle the peculiar nature of this social media genre and could mark a key moment in social media use.

Seven deadly words

The Judge had just seven words to deal with, two of which read as a descriptive ‘emoticon’: ‘Why is Lord McAlpine trending? *Innocent face*’. In interpreting the meaning of the tweet the court looked at the fairly unique nature of the audience to which it was published.

The judge found that Bercow’s followers were probably people who shared her interest in politics and current affairs and who, by the date of the tweet, would also be familiar with the key elements of the Newsnight story which ignited speculation over the identity of an unnamed senior Conservative politician accused of child abuse on the programme. They were also likely to have prior knowledge of the claimant as a former senior Conservative politician.

Significantly the judge held that it was not necessary for the reader of the tweet to have any prior knowledge of the claimant in order to link the tweet with the Newsnight report. This was because the tweet identified him by his title, Lord McAlpine. It is, the court said, common knowledge that today’s peers are generally people who have held prominent positions in public life, often in politics.

Emoticons (which means a symbol like a happy or sad face)

The decision highlights the risk of using emoticons which demonstrate the state of mind or intention behind a tweet. Twitter users must stop and think and give regard to the state of knowledge of their readers. It is all very well being ironic or ‘winking’, but if this is understood to be adopting an allegation or identifying a connection between a person and the alleged wrongdoing, liability can easily follow.

Without a public award of damages it remains to be seen whether users of social media will now take on board that the consequences of our libel law apply equally to social media as to more traditional media, but clearly they should. Tweeters be warned.