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McAlpine -v Bercow. Twitter can be risky!

Written by Michael Coyle on 24 May 2013

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Mr Justice Tugendhat has today found that the meaning of the words complained of in the Lord McAlpine tweet was indeed defamatory.

Background

The Tweet was published on 4 November 2012. His Lordship had to determine  whether or not the Tweet was defamatory of the Claimant. If not then that will be the end of the case.

THE TWEET

The Tweet read:

"Why is Lord McAlpine trending? *Innocent face*"

His Lordship provided an excellent summary:-

The Defendant had over 56,000 followers at time of the tweet. She was well know, married to the speaker and she is/was a 21st celebrity of sorts.

The Claimant is a former Deputy Chairman of the Conservative Party and a former Party Treasurer. Since 2002 he has lived in southern Italy.

I got the impression from the media that the Claimant really did not want to have to go to court and sought to settle all the cases where he could.

WHAT THE PARTIES CONTENDED THAT THE TWEET MEANT

His Lordship said “The Claimant's case is that in their natural and ordinary meaning, and/or in the alternative, by the way of innuendo the Tweet meant that he was a paedophile who was guilty of sexually abusing boys living in care. The Defendant denies that her Tweet meant that, or that it meant anything defamatory of the Claimant. Her case is that the question she asked in her Tweet was simply a question. She accepts that the question implied that the Claimant was trending, but that by itself is entirely neutral, and there is nothing else to be inferred from the question she asked. Her question does not suggest any reason why the Claimant was, or might have been, trending. Her question was as neutral as the statement on the Twitter screen itself which listed the Claimant under the heading "Trends". “

THE LAW

“As a matter of law, words are defamatory of a claimant if (1) they refer to that claimant and (2) they substantially affect in an adverse manner the attitude of other people towards the claimant, or have a tendency so to do. There is no dispute that the Tweet refers to the Claimant, because it names him. The issue here is what the Tweet means, and whether it defames him.

If the Tweet does mean that the Claimant abused children, then there is obviously no dispute that that is one of the most seriously defamatory allegations which it is possible to make against a person.

In libel actions there is often room for argument as to what a statement means. Even if it is defamatory, there can be argument as to whether the allegation is a very serious one, or some less serious one.

HOW THE COURT MUST DECIDE AN ISSUE AS TO MEANING

Two different kinds of meaning

The meanings of words for the purposes of defamation are of two kinds. There may be a natural and ordinary meaning and there may be an innuendo meaning.

In Jones v Skelton [1963] 1 WLR 1362 at 1370-1 the court explained what is meant by a natural and ordinary meaning as follows:

"The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. …. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words."

An innuendo meaning (in the technical legal sense) is something more than a meaning that can be implied from the words complained. It is a meaning which can be implied from the words complained of, but only if the reader also knows other facts (which are not general knowledge). These are generally called extrinsic facts.

In respect of an innuendo meaning, a claimant must, in addition to identifying the meaning complained of, prove the extrinsic facts relied upon and prove that these facts were known to readers (Gatley on Libel & Slander 11th ed. §3.19). The claimant will have been defamed in the minds of those readers, but not in the minds of the readers who did not know the extrinsic facts.

There may be an issue between the parties whether the circumstances of a publication amount to extrinsic facts, which have to be proved as such to support an innuendo, or whether they are general knowledge, which can be relied on in support of its natural and ordinary meaning. Either way, the court must find that the facts are known to the reader.

In the present case there is no dispute about the truth of the fact that the Claimant was a prominent Conservative politician from the Thatcher years. The issue is as to whether any reader of the Tweet knew who the Claimant was.

In the present case the Tweet would mean little to a reader who had no knowledge of any of the Claimant, of the Newsnight broadcast or of the media reporting of the Newsnight broadcast in the period immediately preceding the Tweet. So in the present case I have to decide whether the Newsnight report and the media reporting are to be treated as part of the general knowledge of the Defendant's followers who read the Tweet on 4 November 2012, or whether they are to be treated as extrinsic facts, that is to say, knowledge that would be known only to a limited number of people. If they would be known only to a limited number, then the Claimant must prove that there were readers in that number, and how big that number was.

In cases where the extrinsic fact is obscure a claimant will have to adduce evidence from witnesses or documents to prove that the readers of the words complained of knew the extrinsic facts. But in other cases a claimant may rely on an inference prove that some readers had the necessary knowledge of the extrinsic facts.

In Fullam v Newcastle Chronicle & Journal Ltd [1977] 1 WLR. 651 the plaintiff complained that an article in a local newspaper meant that he had fathered an illegitimate child. But the meaning in question could only be understood by readers of the newspaper who knew facts about the plaintiff's wife and child (the date of the marriage and the date of the birth) which were not set out in the article he complained of. At 659 Scarman LJ explained:

"There may well be cases in which it would not be necessary to plead more than the fact of publication by newspaper and the extrinsic circumstances, leaving it to be inferred that there would be readers with knowledge of the facts [about his wife and child].

For instance, the facts may be very well known in the area of the newspaper's distribution — in which event I would think it would suffice to plead merely that the plaintiff will rely on inference that some of the newspaper's readers must have been aware of the facts [about his wife and child] which are said to give rise to the innuendo."

In the present case the Claimant's primary case is that his having been a politician, the gist of the Newsnight report, and the reporting of it by the media, were so well known to Twitter followers generally that these facts should be treated as part of their general knowledge. If he is wrong about that, his alternative case is that he relies on inference. He submits that the court should infer that there probably were some readers who knew these facts, as explained in the Fullam case.

SUBMISSIONS FOR THE CLAIMANT

Sir Edward submits that the Tweet taken just by itself, consisting of its seven words, suggests that the Claimant has done something wrong. It is not neutral, even to a reader who knew none of the events of the preceding two days. The question is followed by the words "innocent face".

The parties differ as to what the words "innocent face" should be understood to mean in this context. Sir Edward submits that the words "innocent face" are to be read as irony, that is, as meaning the opposite of their literal meaning. People sometimes ask a question to which they already know the answer. They may do that as an indirect way of bringing out into the open something they already know, or believe to be, a fact. They sometimes seek to conceal what they are up to (or pretend to conceal what they are up to) by putting on an expression which suggests that they do not already know the answer to the question. Sir Edward submits that the reasonable explanation for the Defendant inserting the words "innocent face" in the Tweet is to negate a neutral interpretation, and to hint, or nudge readers into understanding that the Claimant has been doing wrong.

A reasonable reader of a Tweet, or anything else, does not just look at the words. A reasonable reader would ask him or herself what the Tweet is about, if it was not pointing the finger of blame at the Claimant. And there would not be a reasonable alternative meaning that would spring to mind.

Sir Edward submits that if the circumstances in which the Tweet were published do not amount in law to general knowledge known to the Defendant's followers, then, because they had been reported in public sources to so great an extent, the court should infer that they were probably known to a substantial number of readers of the Tweet. He submits that I should infer that the Newsnight report, and the allegations made in it, were one of the biggest domestic news stories that weekend.

So if the Tweet is not defamatory in its natural and ordinary meaning, he submits that it is defamatory in an innuendo meaning to that substantial number of readers who did know of the Newsnight report and the other media reports referred to above.

SUBMISSIONS FOR THE DEFENDANT

Mr McCormick submits that the words "innocent face" are to be read literally: that the expression which the reader is being invited to imagine on the Defendant's face in asking the question is "deadpan". It is an expression to convey that she is asking it in a neutral and straightforward manner. She has noticed that the Claimant is trending and all she is asking is that someone should tell her why.

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.

The Defendant does not have any burden of proof in the issue I have to decide. She does not have to offer an alternative explanation of why a peer, whose name and career is known to few members of the public today, might have been trending on 4 November 2012 without her knowing why he was trending. But where the Defendant is telling her followers that she does not know why he is trending, 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.

That leads to the question: what is the level of seriousness of the allegation that the Claimant fits the description of the unnamed abuser? In its natural and ordinary defamatory meaning, that the Claimant was a paedophile who was guilty of sexually abusing boys living in care. If I were wrong about that, I would find that the Tweet bore an innuendo meaning to the same effect. But if it is an innuendo meaning it is one that was understood by that small number of readers who, before reading the Tweet on 4 November, either remembered, or had learnt, that the Claimant had been a prominent Conservative politician in the Thatcher years.

At this stage I am not asked to find how many followers of the Defendant read the Tweet or understood it in the meaning I have found it bore. “

(c) Crown Copyright

 

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