Defamation 101: Sally Bercow's Twitter folly

JUST seven words and a bit of punctuation was all it took to land Sally Bercow in a lot of trouble on Twitter.

Mrs Bercow, wife of the House of Commons Speaker John, made her post on 4 November last year, querying "Why is Lord McAlpine trending? *innocent face*".

Lord McAlpine, though he was not named in a Newsnight report two nights earlier, had subsequently been identified on the internet as the Conservative politician from the Margaret Thatcher era, accused of child abuse.

Except that he had never done such a thing and had instead been a victim of mistaken identity - as his accuser admitted after seeing a different photograph.

The failure to check these facts cost BBC Newsnight - and ITV who repeated the allegations - dearly, with Lord McAlpine being easily able to prove in court that the story referred to him.

But the modern world of social media, such as Twitter, added an extra element to the mess.

Indeed, Lord McAlpine was able to identify thousands of Tweets which he considered defamatory, though he later dropped claims against Twitter users with fewer than 500 followers in return for a charitable donation to the BBC's Children in Need.

With 56,000 followers at the time, Mrs Bercow did not qualify for the exception - and instead she decided to fight her corner, claiming there was nothing defamatory in what she had written.

Unfortunately for her, the judge Mr Justice Tugendhat decided she was wrong.

Now, to bring about a suit of defamation - that is, slander or, more commonly, libel if the relevant material is published on a permanent record such as newspapers or indeed Twitter - the claimant must show three things:

• that the statement referred to him or herself - in the case against Mrs Bercow, he had no problem on this point given that he was named;
• that the statement was published to a third party- again, this was easy to prove given that Mrs Bercow was not denying she had made the Tweet;
• and that the statement was actually defamatory - this is the trickier one in the case of Mrs Bercow's Tweet but, again, defamation law is quite clear on what might be considered defamatory. 

Something is defamatory if it tends to:

1. Expose him/her to hatred, ridicule or contempt;
2. Cause him/her to be shunned or avoided;
3. Lower him/her in the estimation of right-thinking members of society, generally;
4. or Disparage him/her in their business, trade, office or profession

• Notice, the words 'if it tends to' - this means that the person suing does not actually have to prove that the words actually caused any of the four above things to happen. It is enough that they might have happened as a result of the offending statement.

Mrs Bercow's defence in court was none of the traditional defences against defamation - i.e. justification, fair comment or privilege - but simply that her Tweet was not defamatory.

Of course, in the purest sense, the Speaker's wife is correct that her query - "Why is Lord McAlpine trending?" - is not defamatory, but merely inquisitive.

However, the law of defamation is more complicated than that, and it is her addition of "*innocent face" which has really landed her in trouble.

In ruling on the case, Mr Justice Tugendhat, said that her tweet meant “in its natural and ordinary defamatory meaning that the claimant was a paedophile who was guilty of sexually abusing boys living in care.

He added: "If I were wrong about that, I would find that the tweet bore an innuendo meaning to the same effect.”

Innuendo is best eschewed if a hefty legal bill is to be avoided.

For, if the followers of Mrs Bercow's can read between the lines in her appendage "*innocent face*", then so can libel judges, as the Daily Star found out in the 1980s.

The newspaper, under the headline 'A lordly price to pay, wrote: "There's been much excited chatter as to why dashing poetry-scribbling Minister Lord Gowrie left the Cabinet so suddenly.

"What expensive habits can he not support on an income of £33,000? I'm sure Gowrie himself would snort at suggestions that he was born with a silver spoon round his neck."

Lord Gowrie's lawyers said: "The reference to [his] expensive habits, the suggestion that he was unable to support those habits on his ministerial salary, the use of the word 'snort' and the reference to a 'silver spoon around his neck' all bore the plain implication, to all familiar with the relevant terminology, that [he] was in the habit of taking illegal drugs, in particular cocaine."

Now, for future journalism students, the National Council for the Training of Journalists (NCTJ) can update its course textbook McNae's Essential Law for Journalists with the Bercow case.

Meanwhile, those of us, like me, who are just joining Twitter would do well to learn from Mrs Bercow's expensive folly.

You can follow my worldly observations on my new account, @gallowgate_pete.