Case Law: McAlpine v Bercow (No.2), Sally Bercow’s tweet was defamatory – Hugh Tomlinson QC

In a judgment handed down on 24 May 2013 ([2013] EWHC 1342 (QB)) Mr Justice Tugendhat ruled that a tweet sent by Sally Bercow bore the “natural and ordinary” defamatory meaning that Lord McAlpine “was a paedophile who was guilty of sexually abusing boys living in care“.  In the alternative, he held that the tweet bore an “innuendo meaning” to the same effect.   The Guardian reports that Ms Bercow said she was “surprised and disappointed” by the ruling but accepted it as the end of the matter.  A settlement has now been agreed between the parties.

Background

On Friday 2 November 2012 the BBC “Newsnight” programme broadcast a report which included a serious allegation of child abuse against a “leading Conservative politician from the Thatcher years“. No individual was named.  It later transpired that the accuser had misidentified the person who had abused him.

The contents of the “Newsnight” report were widely reported in the media on the Saturday and Sunday but the alleged abuser was not named.  Further details are set out in an Inforrm post of 11 November 2012.  The BBC subsequently apologised unreservedly to Lord McAlpine and agreed to pay him substantial damages (see our post here)

On Sunday 4 November 2012, Ms Bercow tweeted the following words:

“Why is Lord McAlpine trending? *Innocent face*”

Lord McAlpine brought proceedings for libel against her in relation to the publication of the tweet to her 56,000 followers.

Judgment

The judge inferred that there were substantial number of views of the “Newsnight” report and that, by 4 November 2012, a very large number of people had read the media reports about it.  These people included a substantial number of readers of the Tweet [30]

In a section of the judgment headed “How the Court must decide an issue as to meaning”, the Judge rehearsed the well known legal principles governing “meaning” in the law of libel.  In particular

• A “natural and ordinary meaning” is may include implication or inference which a reasonable reader not guided by any special knowledge would draw from the words [48] (citing Jones v Skelton [1963] 1 WLR 1362 at 1370-1371)
• An “innuendo meaning” is one implied on the basic of other “extrinsic facts” known to the reader.
• The governing principle for meaning is “reasonableness”, some implication is permitted but the reasonable reader is not “avid for scandal”, the intention of the publisher is irrelevant (see generally Jeynes v News Magazines Limited [2008] EWCA Civ 130 at [14]-[15]).

The judge held that a reasonable reader would have linked the claimant to the “Newsnight” report, essentially for two reasons

(1)   Her twitter followers were interested in politics and current affairs;

(2)   Even without prior knowledge of the claimant they would have known (from the use of the title “Lord”) that is is likely he was prominent in public life, he was not otherwise in the public eye at the time and “there was much speculation about the identity of an unnamed politician who had been prominent some 20 years ago” [83]

The parties differed as to what the words “innocent face” should mean – the claimant submitting that it bore the opposite of its literal meaning, while the defendant arguing that it should be understood in a neutral way: she had noticed the claimant was trending on twitter and was asking for someone to tell her why.  The judge, unsurprisingly, rejected the defendant’s argument

“In my judgment 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” [84].

The judge concluded that, as the defendant was telling her followers that the claimant was trending on Twitter 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. The reader would reasonably infer that the Defendant had provided the last piece in the jigsaw” [85].

As a result, taking into account the so-called “repetition rule”  (the rule that a defendant who repeats a defamatory allegation made by another is treated as if he had made the allegation himself [44]) the defendant was to be treated as if she had made, with the addition of the claimant’s name, the allegation made on “Newsnight”.  This was an allegation of actual guilt.

As a result, the Judge concluded that

“the Tweet meant, in its natural and ordinary defamatory meaning, that the Claimant was a paedophile who was guilty of sexually abusing boys living in care” [90].

In the alternative, the tweet bore an “innuendo meaning” to the same effect: one that was understood by the small number of readers who, before reading the tweet, either remembered or learnt, that the claimant had been a prominent Conservative politician in the Thatcher years [91].

Comment

From one perspective, this result is not surprising.  Although the “subjective intention” of the publisher of words is irrelevant, a reasonable reader would obviously seek to work out what the publisher is “trying to say”.  In this case, a reader would try and work out why the defendant was saying that Lord McAlpine was trending on Twitter. The reference to “innocent face” was an obvious and important clue.  The Judge was plainly right to conclude that a reader would infer that it was intended to convey the opposite of innocence: that the defendant was telling the readers of the tweet that she was conveying something “guilty”.

In the circumstances, a reader who knew the background – the “Newsnight” broadcast, the media reports and Lord McAlpine’s status as a “Conservative politician from the Thatcher years” – might well have inferred that the Tweet meant: “Lord McAlpine is trending on Twitter because he is the child abuser who was the subject of the Newsnight report“.  In other words, such a reader might well have understood the words as conveying a serious defamatory imputation.

All this depends on the reader knowing something about the background – having some “special knowledge” of about the “Newsnight” broadcast and its aftermath.  Bearing in mind the extent of the publication and the obvious interest of at least some of the defendant’s twitter followers in politics it seems likely a number of readers of the tweet (although perhaps not very many) would have had the relevant knowledge.

These arguments support the Judge’s conclusion on “innuendo”.  The position on “natural and ordinary meaning” is less straightforward.  “Natural ordinary meaning” covers both the words themselves and inferences which can be drawn from them (see Lewis v Daily Telegraph [1964] AC 234, 258).  But the meaning must be “detected in the language” by a person without any “special knowledge” (see Jones v Skelton [1963] 1 WLR 1362 at 1370-1371).

It difficult to see how, in this case, a reader of the Tweet who had, for example, paid no attention to the media between 2 and 4 November 2012 could possibly have understood the tweet as making a defamatory allegation against the claimant.  The question of the absence of an “alternative explanation” mentioned by the Judge ([85]) cannot assist on this point: the reader who had paid no attention to the media would simply not understand what the tweet was about.  It would probably come across as another, unfathomable, twitter “in-joke”.

Although the difference between “natural and ordinary” and “innuendo” meanings appears highly technical it is of great practical relevance when it comes to assessing damages.   If every “reasonable reader” of the tweet would have understood it as making an extremely serious defamatory allegation against the claimant the damages would be much greater than they would be if only a small number of readers, with special knowledge, had this understanding.

As the case has settled this in an issue which will not be considered further by the Courts.  The case does, however, illustrate the risks of tweeting in general and the risks of passing on rumours (or being perceived to pass on rumours) in particular.   As Ms Bercow said in her statement issued after the judgment was handed down

“Today’s ruling should be seen as a warning to all social media users. Things can be held to be seriously defamatory, even when you do not intend them to be defamatory and do not make any express accusation. On this, I have learned my own lesson the hard way”.