English Tweet not so Innocent: Lord McAlpine v Bercow [2013] EWHC 1342 (QB)

The Claimant
The Claimant

In England, Lord McAlpine is a former Deputy Chairman of the Conservative Party and a former Party Treasurer. He was a close aide to Margaret Thatcher during her time as Prime Minister and he had a significant political profile in the 1970s and 1980s. He retired from working for the Conservative Party in 2002 and since then, has lived in southern Italy, out of the public eye.
The Defendant is a well known English lady for a number of reasons. She is the wife of the Speaker of the House of Commons and had appeared on television a number of times in well known broadcasts. She has a Twitter account with over 56,000 followers.
On 4 November 2012 she Tweeted 14 times and one of those Tweets landed her in the English High Court in this case. The Tweet constituted only seven words, but the question was whether it was defamatory. What happened was this.
On the night of Friday 2 November, BBC’s current affairs show, Newsnight broadcast a report which included a serious allegation of child abuse. The allegations were made by a Mr Messham, who was undoubtedly abused when he was a boy living in a care home in Wales in the 1970s and 1980s. He alleged that one of his abusers was a person who was variously referred to as “a leading Conservative from the time”, “a leading Conservative politician from the Thatcher years”, “a senior public figure”, “a shadowy figure of high political standing” and “a prominent Tory politician at the time”.
However, as Justice Tugendhat pointed out at [15], this was a case of mistaken identity.
The Newsnight report did not name the politician referred to and stated that it did not have enough evidence to “name names”.
After that, a number of further publications in the media followed. Between 2 and 4 November, online and traditional media widely reported on Newsnight’s allegations. The Guardian, The Sunday Telegraph, Mail Online. None of them named the politician either, but simply reported on Newsnight’s story. It also set off a frenzy of unsubstantiated speculation on social media networking sites and several politicians were named there. The BBC subsequently reported that it was preparing to expose a senior political figure as a paedophile.
Behind those facts, the Defendant Tweeted this:
“Why is Lord McAlpine trending? *Innocent face*”

For those who don’t spend time in the Twitterverse, the Twitter website has a screen with a box

The Defendant
The Defendant

headed “Trends”, which lists names of individuals and other topics that are immediately popular, to help people discover the emerging topics of discussion.
In terms of the Innocent Face, it is like an emoticon and readers are apparently to imagine that the Defendant is looking innocent while sending the Tweet.
The question was what did the Tweet mean? It was a preliminary question, where no evidence was heard and if it was found that the Tweet was not defamatory, then the case would end.

The Claimant claimed that as a result of these facts in the lead up, the Tweet meant that he was a paedophile who was guilty of sexually abusing boys living in care. The Defendant argued that she was simply asking a question and that was entirely neutral. Good luck with that one.

Clearly, the Tweet would mean nothing to any reader who had not seen the Newsnight report or any of the other media reports or did not know who Lord McAlpine was. The issue was whether that material ought to be treated as part of the general knowledge of the Twitter followers.

In the absence of evidence, Justice Tugendhat inferred the following:
1. There were a substantial number of viewers of the Newsnight report;
2. By early 4 November a very large number of people in England and Wales had read one or more of the media reports;
3. The people who viewed the Newsnight report and who had read the other media reports included a substantial number of readers of the Tweet.

The Claimant submitted that the only reasonable explanation for the words “innocent face” was to hint or nudge readers into understanding that the Claimant had done wrong. Then the answer to the question asked in the Tweet would be to the reasonable reader, that the Claimant was trending because he was the senior Tory politician from the Thatcher years who Mr Messham identified as his abuser in the children’s home in Wales. That is serious.

The Defendant submitted that she was innocent and was simply asking why Lord McAlpine was trending, and this had nothing to do with anything.
Justice Tugendhat concluded:
1. The Defendant’s Twitter followers were probably very largely made up of people who shared her interest in politics and current affairs.
2. They would have had some prior knowledge of the Claimant as a leading Conservative politician from those years.
3. The Tweet asked why the Claimant was trending in circumstances where: he was not otherwise in the public eye and where there was much speculation about the identity of an unnamed politician who had been prominent from 20 years before.
4. The reasonable reader would understand “innocent face” as being insincere and ironical. There was no sensible reason for including those words in the Tweet if the Defendant simply wanted to know the answer to a factual question.
5. It was reasonable to assume that the Claimant was trending because he fitted the description of the unnamed abuser.
In determining the meaning, Justice Tugendhat concluded that the Tweet meant, in its natural and ordinary meaning, that the Claimant was a paedophile who was guilty of sexually abusing boys living in care. Just about as defamatory as it gets and a massive win for the Claimant.

As for the Defendant, she will be looking at a hefty damages bill, should the matter of assessment of these damages ever ultimately get to trial.