The Lord McAlpine of West Green v Sally Bercow
Reference:  EWHC 1342 (QB)
Court: High Court, Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 24 May 2013
Summary: Defamation - Meaning – Natural and Ordinary Meaning – Innuendo – Repetition Rule - Social Media
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Kate Wilson (Claimant)
Instructing Solicitors: RMPI for C; Carter Ruck for D.
The C was a former Conservative politician, who had been a close aide to Margaret Thatcher. The D is the wife of the speaker of the House of Commons and has appeared on television. She had over 56,000 Twitter followers.
On 2 November 2012, the BBC’s current affairs programme Newsnight broadcast a report which included a serious allegation of child abuse. The complainant alleged that he had been abused in the 1970s and 1980s while in care, and the abuser was referred to as “a leading Conservative politician from the Thatcher years”. Newsnight did not name the politician in question. The identity of the politician became a matter of intense public speculation. The complainant’s belief in the identity of the abuser was mistaken. The C denied any involvement in any child abuse and this was accepted by the complainant and the Defendant. The D accepted that the C was the victim of mistaken identity shortly after her tweet on 4 November 2012.
On 4 November 2012, the D published the following ‘tweet’: “Why is Lord McAlpine trending? *innocent face*”.
C brought a claim in defamation against D on the basis that the tweets natural and ordinary meaning, and/or in the alternative, by way of innuendo meant he was a paedophile who was guilty of sexually abusing boys living in care. The D did not accept that the words complained of were defamatory of C. The D’s case was that the question was entirely neutral, there was an acceptance that C was trending on twitter, but nothing else could be inferred from the question asked.
(1) What is the natural and ordinary and/or innuendo meaning of the words complained of?
(2) Is that meaning defamatory of C?
(1) The followers of the D on twitter were probably largely people who were interested in politics, would have known about the Newsnight report and the fact the report was the subject of public controversy. Some followers would also have known who Lord McAlpine was despite being retired from politics for 20 years. However, it was not necessary for the reader to have prior knowledge of the C. The use of the title ‘Lord’ to signify a peer of the realm would be understood denote a person who holds a prominent position in public life, in many cases politicians. The tweet’s question was posed in the circumstances of referring to a former politician not otherwise in the public eye, and while there was much speculation concerning an unnamed politician who had been a prominent figure 20 years ago.
(2) The words “innocent face” were akin to a stage direction or emoticon and would be understood by the reasonable reader to mean being insincere and ironical. There would be no sensible reason to include those words if the D was seeking an answer to a factual question.
(3) The reasonable reader would infer that the D had provided the “last piece in the jigsaw” in the public speculation concerning the identity of the complainant’s alleged abuser
(4) The Newsnight report was not a report on an investigation, it was an accusation of a criminal offence. The tweet is linked to those reports by adding a name that was not in the reports themselves. It was, in accordance with the repetition rule, a repetition of the accusation with the addition of a name previously omitted. The tweet is treated the same as if the D had made those allegations with the addition of the name. It was an allegation of guilt.
(5) The tweet meant, in its natural and ordinary defamatory meaning, that the C was a paedophile who was guilty of sexually abusing boys living in care. The tweet also bore an innuendo meaning to the same effect.
This case illustrates the danger of a publisher being caught under the repetition rule. The D had not included any details of the Newsnight Report in her tweet, however once the judge made a finding that the D was linking the C with those reports – a link which the BBC deliberately chose not to make – the repetition rule acted to associate the D with the full accusation of C’s guilt of a criminal offence.
This was the second major case dealing with defamation on twitter after Cairns v Modi. As in that case, importance was attached to the characteristics of users of twitter who follow the publisher of the words complained of. In this case, the judge held that the tweet was not a publication to the world at large. The publisher’s followers, rather than the general users of twitter, are the class for which the court will construct its findings on meaning. How you historically cultivated your twitter account is therefore material to a consideration of your follower’s characteristics. Although twitter is a global and ephemeral platform, and publication to a small and discreet number of followers is capable of being read by the world at large instantly, it is a publisher’s followers, rather than users generally, who aid in the determination of meaning.