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Lord McAlpine won the first stage of his libel battle against Sally Bercow, the Common’s speaker’s wife, last week. Mr Justice Tugenhadt ruled that the High Court should first decide whether Ms Bercow’s tweet to her 56,000 followers in November 2012 - "Why is Lord McAlpine trending? *innocent face*" – was capable of being defamatory. If Lord McAlpine is successful, the level of damages will be decided a subsequent hearing.
It would not be a great surprise if the McAlpine claim is settled between the parties before it reaches trial. In any event, it highlights the dangers faced by users of social media, particularly Twitter. Below, I have highlighted four areas where Twitter users need to be careful to avoid the long arm of the law.
Twitter is the perfect tool for disseminating information and consequently rumour, but not all of these rumours are true. Twitter users may see their tweet or re-tweet as harmless, particularly if ‘everyone else is saying it’ but at some point we will see a libel claim with many defendants targeted. Lord McAlpine probably realised that it would be a PR own goal for him to pursue 10,000 or so people who tweeted or re-tweeted the false child abuse allegation. However, the case demonstrates that Twitter users with a significant following who make false allegations will face libel claims, especially if the tweet is sensational and damaging.
If the tweet or re-tweet contains a false allegation which damages someone’s reputation it is potentially libellous. It is similar to publishing a false and damaging report in a newspaper or an untrue story about an alleged affair in a magazine. Each re-tweet of a libellous tweet can give rise to a separate claim. The words complained of can be libellous even if innuendo has been used, as Ms Bercow has discovered to her cost.
The best defence will always be that the tweet was true. However, it will usually be difficult for Twitter users to prove that a tweet was true if he/she has relied on gossip or rumour. Therefore, a more attractive defence would probably be ‘fair comment’; that the tweet represented the individual’s honestly held opinion based on the established facts.
If a Twitter user posts a tweet which contains private information about an individual, he/she could find themselves on the receiving end of a privacy claim.
It is easy to see how the situation might arise. The Twitter user hears a rumour about someone which had been kept private - like an affair, a secret ‘love child’, or even an illness. The Twitter user, armed with this information, cannot resist the temptation to tell his/her followers he/she knows by posting a tweet on the subject.
The starting point in a privacy claim is whether the claimant has a reasonable expectation of privacy in respect of the information. The next question to consider is whether the information is in the public interest. There is already a considerable amount of case law in the UK about what is and isn’t in the public interest and about whether some public figures have less protection because they are considered to be role models.
The key point to note is that Twitter users are regarded by law as no different to a newspaper publishing details of an affair or publishing details of a celebrity attending AA meetings. There is no safety net just because the information was published in a tweet or re-tweet. Twitter users can sometimes reach out to a vast (or more damaging) readership, thereby causing tremendous suffering on the individual whose right to privacy has been breached.
Contempt of Court
There have been a number of instances in the past couple of years where social media users have found themselves facing prosecution for contempt of court because of a tweet or re-tweet which breaks the terms of a court injunction, including naming rape victims or revealing prejudicial information about an accused during a trial. Contempt of court prosecutions can result in a fine or imprisonment.
One high profile recent example is the attorney general taking action against several people who published photographs allegedly showing one of James Bulger’s killers, notwithstanding the fact that there is a ban on publishing anything revealing the identity of the killers.
A more relevant example to most Twitter users is the case where 75,000 people posted tweets naming Ryan Giggs as the footballer who had obtained a super injunction banning details of an affair being published. On that occasion it did not result in a prosecution or claim but Twitter users do need to be careful of posting tweets where the publication is banned by virtue of a court order. Again, it is dangerous to assume that Twitter users breaching injunctions will be protected because of ‘safety in numbers’.
Threatening and Offensive Publications
In 2010, a Twitter user joked that he would blow up Robin Hood Airport and was convicted of sending a “menacing electronic communication” under the Communications Act 2003. His conviction was eventually quashed by the High Court following a campaign to defend free speech on Twitter. That case should, in reality, never have been prosecuted given that the individual never intended the tweet to be taken seriously. However, prosecutions will happen in the future in circumstances where it is clear that a threat carries genuine menace.
In 2011, Sean Duffy posted images on Facebook and YouTube mocking the deaths of four children, including a 15 year old who had committed suicide. Mr Duffy was prosecuted under the Malicious Communications Act 1988 (which makes it an offence to publish material which is “indecent or grossly offensive, or which coveys a threat….[where] there is an intent to cause distress or anxiety to the recipient”). He was jailed for 18 weeks.
In 2012, a footballer posted a homophobic tweet about Tom Daley. No prosecution was pursued. However, the case generated a considerable amount of publicity and led to the director of public prosecutions saying:
"Communications intended for a few may reach millions…Social media is a new and emerging phenomenon raising difficult issues of principle, which have to be confronted not only by prosecutors, but also by others including the police, the courts and service providers”.
The CPS has now published new guidelines in an attempt to limit the number of criminal cases being prosecuted for abusive tweets and publications on other social media sites. However, in the past couple of weeks, as Paris Brown (Britain’s first youth police and crime czar) has discovered, even when offensive tweets do not pass threshold for criminal prosecution, the police and media scrutiny that follows some social media activity can be disproportionate in any event.
In respect of claims in the civil courts, vulgar and unpleasant abuse is not considered defamatory. However, at least two tweets of an abusive nature could give rise to a civil claim and/or criminal prosecution for harassment under the Protection from Harassment Act 1997.
To avoid landing in court, do consider the following when posting a tweet:
In the future there is unlikely to be surge in criminal prosecutions against Twitter users. There is a growing understanding within the CPS and the courts that ‘banter’ which sometimes crosses into abuse is commonplace on Twitter and therefore the threshold for prosecution will be high. However, Twitter related libel and privacy claims will be a feature moving forward, some of which are bound to involve high profile figures in the public eye. Twitter users ought to consider carefully before posting tweets whether it is true and/or private. Balanced against that caution, Article 10 of the European Convention on Human Rights protects free speech and Twitter will quite rightly continue to be a powerful tool for individuals to exercise their right to freedom of expression.
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