Defamation lawyer Campbell Deane, a partner at law firm BKF & Co, looks at the consequences facing those Twitter users who named Lord McAlpine.
Lord McAlpine’s announcement that he intends to take legal action against all those Twitter users who falsely mentioned him in relation to the Welsh child abuse allegations may finally make the Twitterati face up to the consequences of getting it so wrong.
McAlpine's solicitor has indicated that he has a list of the names of those who posted and has appealed to those who named Lord McAlpine on Twitter to come forward. He was quoted as saying “it’s easier to come forward and see us and apologise and arrange to settle with us because, in the long run, this is the cheapest and best way to bring this matter to an end." And indeed he is right. The libel game is far from cheap even on an isolated basis, but where multiple actions are concerned, it would be crippling.
On one view, such an announcement may be seen as posturing, asking the guilty to hand themselves in, but if the announcement is a true statement of his intent, then fessing up like a naughty school boy may be the smartest move. That is because it is difficult to see what defence could indeed be open to those who have defamed him. The information imparted on Twitter was false. It was a case of mistaken identity as has been accepted by Steve Messham, the victim who made the allegation, and Newsnight who broadcast it, albeit without naming McAlpine.
Choosing not to name by itself doesn’t provide a defence to the BBC. It is well settled in law that the person defamed does not need to be specifically named, rather capable of identification, and the Tweetstorm that proceeded Newsnight was in no doubt as to the paedophile’s identity. Those who tweeted his name pre broadcast of Newsnight are perhaps the most culpable but the law is unlikely to differentiate between before and after the event.
The main problem for those after the event lies in what is known as the repetition rule. In short that means that it’s not a defence to say that you were merely repeating what you were told. You can’t repeat a libel with impunity. It is possible in certain circumstances to argue what is commonly referred to as reportage. Reportage involves adopting a neutral approach to the allegation and simply reporting the facts, in this case that Newsnight had identified “a leading Tory politician of the Thatcher era” as being a child abuser. If Newsnight had named McAlpine then again a neutral statement to that effect could allow the Tweeter a defence of reportage and not fall foul of the repetition rule. But Newsnight didn’t and to speculate as to the individual’s identity is a step too far, since it is no longer simply reportage.
The law also affords a defence of responsible journalism or what is known as Reynolds privilege even where the information published is wrong. To rely on that, however, the Tweeter would have had to carry out their own investigation into the allegations, which is highly unlikely. Simply scouring the internet for like minded false allegations wouldn’t qualify. And that seems right, even from a practical basis, since why should it be that an individual’s reputation is so shockingly traduced without any right of redress. As the courts have endlessly commented, with free speech comes responsibility.
Of course there may well be the usual clamors that proposed court actions like these stifle free speech and the law is in need of reform. Well that is exactly what is happening. The current version of the Defamation Bill contains a defence of Responsible Publication in the Public Interest however an even more wide ranging defence was formulated in the House of Lords debate by Lord Lester. He proposed that if the statement formed part of a publication on, a matter of public interest, and if the defendant honestly and reasonably believed at the time of publication that the making of the statement was in the public interest, then a wide discretion should be given to person responsible for the publication. This defence could be relied upon irrespective of whether the statement complained of was a statement of fact or a statement of opinion. All the defender need do to use the defence would be to apologise.
If this had been the current law then it is indeed possible that any right of action would only exist if the Tweeter refused to apologise. And let’s face it, why would you refuse? It would be argued that their tweet added to a public interest debate and it was in the public interest to tweet because the identification of Lord McAlpine had flowed from the Newsnight investigation.
Given what has ensued over the last week it seems unlikely that such a concession will now be afforded any position in statutory reform. Tweeters beware.