Will McAlpine Bring Order to the Twitter Playground?Posted on
Twitter is not, as some may claim, the Wild West. It is not lawless it is just vast, which makes it difficult to police. The effect is that only those that shout incredibly loud will receive maximum attention, be it good or (more often than not) bad.
Twitter users have been operating under the misapprehension that Twitter is a safe haven to abuse, scandalise and defame for some time now. Lord McAlpine’s reported legal action against “10,000 Twitter users” (presumably this figure is an exaggeration worthy of John Hemming MP’s “75,000 Twitter users” claim in the CTB v NGN case) may well be the jab in the arm the Twittersphere needs.
Many commentators have argued in recent weeks that Twitter is a different case and should therefore be treated differently in the eyes of the law. Not so. Publication on Twitter is the same as publication in any other medium. The microblogging site, and other social media and blogs, are increasingly influential, to the extent that Philip Schofield and ITV (in creating their own difficulties) relied wholly on “3 minutes” of online search to “out” alleged paedophiles to David Cameron live on This Morning.
From personal privacy to the reputation (and finances) of company brands, the influence of Twitter is profound.
It is still only a relatively small percentage of the population that actually uses Twitter (reportedly 13% of Americans according to the Huffington Post), however, it is the influence the site has on the mainstream media which makes it so important. The press rely heavily on Twitter for its stories, particularly in the tabloid environ, indeed a search for the terms “Twitter” on the MailOnline (the world’s most popular English language website) pulls up over 12,000 results.
A campaign (whether against a company’s product or service, or whether a spiteful campaign against an individual) can very quickly pick up pace and support online and become a reputational or privacy nightmare. But for those posting online, it is worth bearing in mind the wise words of Spiderman (via Voltaire) – “With great power comes great responsibility”.
Lord McAlpine has reportedly accepted £185,000 damages from the BBC relating to the original false allegations – what can the Twitterati expect?
The first question Tweeters will be asking (or asking their lawyers) is whether their Tweet was defamatory of McAlpine. Sally Bercow, the most high profile individual in the McAlpine headlights, has already publicly claimed that her Tweet was not defamatory. She seems to rely on the fact that her Tweet made no actual allegation (the Tweet said simply “Why is Lord McAlpine trending? *innocent face*”). To be defamatory a publication must make a false allegation which lowers the claimant in the opinion of readers. On that construction it might be said that no allegation has been made, however, the test is what the ordinary reader would understand the publication meant. So we’re looking at the ordinary Sally Bercow follower on Twitter (if there is such a thing). In order to show that the ordinary Bercow Tweep would draw the defamatory meaning then McAlpine’s lawyers will have to show a so-called “innuendo meaning” – that the ordinary reader is likely to have extrinsic facts in mind when reading the Tweet (i.e. the BBC allegations and the claim that the identity of the person alleged was being routinely leaked on Twitter).
And what of ReTweeters? Well, the law is no kinder to someone who passes on a defamatory allegation. Each new Tweet, or ReTweet, is a new publication. The FA held Rio Ferdinand responsible for ReTweeting the infamous “choc ice” Tweet and a court of law would be no different in relation to a defamatory Tweet. Bercow’s Tweet was ReTweeted 146 times. Those individuals may have less to fear than Bercow though. McAlpine’s lawyers have reportedly assured “ordinary people” (whatever they are!) that McAlpine will only be seeking nominal charitable donations of between £5 and £100 from them. Bercow, and other high profile Twitter users such as George Monbiot, may not be so lucky. Bercow had 56,000 followers when she Tweeted about McAlpine (which went up by over 3,000 following her McAlpine Tweet until she deleted her account in the face of another embarrassment – this time Tweeting the name of a child who is an alleged victim of crime). Given the 146 ReTweets (which multiplies the number of potential recipients by the number of followers the ReTweeters have) the potential audience is very large (there are certainly many regional newspapers who would kill for that size of audience). Mrs Bercow has embraced her public figure status, kept a verified account with a large following and must therefore accept that she held a high responsibility in what she Tweeted.
Damages in libel are assessed on the basis of many factors including distress to the victim and the extent to which his/her reputation is damaged. The seriousness of the allegation and the size of audience will have a massive bearing on both.
Boris Johnson has commented, rightly, that there could scarcely be a more serious allegation. Indeed, this was recognized in the case of Lillie and Reed v Newcastle City Council in which false allegations of child abuse resulted in a damages award of £200,000.
If Bercow gets to the question of damages then she would be well advised to try and establish that the actual audience was lower than first appeared. Many of her followers will be Spambots and many will not have even noticed the Tweet, however, the audience will still undoubtedly be large. Lalit Modi’s lawyers argued similarly in the case brought by New Zealand cricketer Chris Cairns against him, regarding a Tweet which falsely alleged that Cairns had taken part in match fixing. The court spent a great deal of time analyzing how many users had actually received the defamatory Tweet, the conclusion being that there had been no more than 65 recipients. Despite this relatively low number Cairns was awarded £90,000 in damages (which was upheld by the Court of Appeal).
Assessing damages in libel is notoriously difficult. Knowing the amount of damage caused is incredibly difficult as it is unknown exactly where the allegations have been read. As the courts have put it – the libel is“driven underground” only to “emerge from its lurking place”. In the Cairns v Modi case the judge Bean J affirmed that this is more so in the internet age “nowadays the poison tends to spread far more rapidly”.
Twitter is instant and cannot be undone and, within hours or even minutes, a damaging Tweet can spread and spiral out of control. Ashley Cole deleted his infamous #bunchoftwats Tweet within 1 hour, not before it had been ReTweeted 19,000 times. Tweet in haste, repent at leisure. Deleting a Tweet is so often futile, it can be screengrabbed, recovered and even cached by websites like Topsy.
The vastness of Twitter, and the perceived anonymity of the medium, emboldens users to take actions that they would never consider in the “real world” (allowing vile comments to be directed at sportsmen such as Fabrice Muamba and Stan Collymore). The anonymous troll is a common client issue that I come across. An individual who sets up an anonymous account with the sole intention of distressing, impersonating, defaming and/or abusing a well-known individual. The response from the troll when the light is shined on him/her is interesting, the transformation from abhorrent bully to meek apology is almost Damascene.
Every action we perform online leaves a muddy footprint and, in serious situations, it is necessary to obtain a disclosure order from the court (a so-called Norwich Pharmacal Order) which can be served on the website. Such Orders have been successfully obtained against US websites such as Wikipedia and Twitter. In the case of South Tyneside Council v Twitter an individual posting alleged defamatory postings on Twitter was outed via the Californian court system. Whether Twitter’s move to the UK, to exploit commercial opportunities in Europe, will make it easier for UK victims of defamation to obtain disclosure orders remains to be seen. Often it’s not necessary. Impersonators and anonymous trolls regularly give themselves away in one way or another. I have seen individuals giving themselves away by using the same language on their fake and real accounts, using Blackberry Pin to impersonate a client (which gives away more information than a fake Twitter or Facebook account) or even following their own account from a fake account.
Originally posted on the Sports Reputation Group website.