Will McAlpine bring order to the Twitter playground?

From personal privacy to the reputation (and finances) of company brands, the influence of Twitter is profound. 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” 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 and as such should take its place in a comprehensive media management package. 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. 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. Following legal advice, 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. The test is what the ordinary reader would understand the publication meant. 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. Given the 146 ReTweets the potential audience is very large. 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. 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. 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.