Former Deputy Chairman of the Conservative Party, Lord McAlpine has been successful in libel action brought against Sally Bercow, former Celebrity Big Brother contestant and wife of the Speaker of the House of Commons.
In November 2012, BBC's "Newsnight" broadcast a report making serious allegations against 'a leading Conservative politician from the Thatcher years'. It alleged the politician was guilty of sexually abusing boys living at the Bryn Estyn care home in Wales during the 1970s and 1980s. The politician was not named and the presenter said there was not enough evidence 'to name names'.
A frenzy of speculation followed on social media sites, with Mrs Bercow tweeting to her 56,400 followers: Why is Lord McAlpine trending? *Innocent face*. Lord McAlpine commenced libel action claiming damages over the Tweet.
On 24 May, Mr Justice Tugendhat found that the Tweet had defamed Lord McAlpine.
Lord McAlpine's counsel argued that due to the notoriety of the case at the time as well as the 'nudge nudge wink wink' nature of the Tweet, only a 'moron in a hurry' would have failed to read Mrs Bercow's tweet as meaning that he was "a paedophile who was guilty of sexually abusing boys living in care."
Mrs Bercow denied that her Tweet was defamatory but accepted that it implied that 'Lord McAlpine' was trending, but that by itself was entirely neutral, and there was nothing else to be inferred from the question she asked.
The judge found that the Tweet could not be read in that way, in isolation from the general knowledge of the people following Mrs Bercow on Twitter and reading the Tweet complained of. He decided that those followers "are probably very largely made up of people who share her interest in politics and current affairs" and that a controversial decision had been made by the BBC not to name the politician.
Further, Tugendhat J ruled on the significance of the asterisked phrase in online parlance and the effect of an 'emoticon' or 'smiley' on what the material meant. Readers are likely to imagine that they can see the Defendant's face as she asks the question in the Tweet.
He found that the reasonable reader would understand the words "innocent face" as being insincere and ironical. There was, he said "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."
Further, the judge noted that 'trending' is defined by Twitter as figuring in the list of names of individuals and other topics which appears on each Twitter page, generated by an algorithm which "identifies topics that are immediately popular, ...the hottest emerging topics of discussion on Twitter".
His judgment was therefore that the Tweet "meant that Lord McAlpine was a paedophile who was guilty of sexually abusing boys living in care."
The judge went out of his way to state that the parties and the public at large accept that Lord McAlpine is "entirely innocent of any of the very serious crimes of which the children in Wales were undoubtedly the victims"... and that it "is one of the most seriously defamatory allegations which it is possible to make against a person"
Mrs Bercow has reportedly accepted an offer to settle the matter, bringing the action to an end - which highlights the contribution to the prompt resolution of libel complaints which can be made by 'trials of preliminary issues'.
The Defamation Act 2013 due to come into force later this year should simplify the law and procedure relating to online libel complaints. It is designed to make it easier for complainants to obtain identification details of those posting material - whether it works, remains to be seen.
The McAlpine judgment should serve as a reminder to people that posting on Twitter can be just as libellous as writing anywhere else. In the same way as printed or broadcast material, the nature of the allegation and the number of people who read it will dictate what weight attaches to it in terms of the seriousness of the libel. There's no magical protection just because you are using a social medium online.