Innocent Face and Mischief

May 23, 2013

Heaven knows it is not easy to feel sorry for Sally Bercow. She is not top of my list of sympatico victims. But I do feel a certain sympathy. Life would indeed be drab if there were not a few ‘mischievous’ souls around, and her now notorious ‘innocent face’ tweet really does seem to have been no more than mischievous. After all, who could have imagined that a group of highly paid journalists (I am not entirely sure of the correct collective noun – ‘gutter’ was suggested on the Internet but that seems harsh), from the BBC no less, were so incompetent as to run a high-profile, much trailed story when it was so fatally flawed.

I confess I frequently find myself wondering ‘Why is X trending?’ and trying to guess whether X has (a) died, (b) been accused of a 1970s sex offence, (c) dated Rhianna or (d) signed for Arsenal. (In the unlikely event that I ever find myself trending, I am hoping it will be (c) and (d) – a busy day indeed -but, given the inevitability of (a), (b) seems like the only possible candidate.) But merely wondering, or even clicking on the relevant feed, will not get you into trouble. It is pretty clear now that retweeting and merely referring to other tweets might. Sally Bercow now knows, as her mother no doubt often told her, that being ‘mischievous’ involves the creation of a mischief.

I have not insulted SCL members by running the Bercow case as a news story on the SCL site as it has been hard to miss it. If you have been under a rock all day, the story is {here:} and the High Court judgment is {here:}. Although it is a libel case in the context of social media, it is more about the well-established rules of defamation than it is about social media. I am a little surprised by the defence that was run and not surprised by the judgment. Tugendhat J said:

84. 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.
85. 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.
86. That leads to the question: what is the level of seriousness of the allegation that the Claimant fits the description of the unnamed abuser?
87. The Newsnight report was not a report of an investigation by the police (or by anyone else). Nor do the media reports suggest that they were reporting on an investigation. The Newsnight report, and all the other reports are of the allegations of a man who complained he was sexually abused. It is true that some reports also included that the unnamed person who is accused of the crime has vehemently denied it. But what is reported is the accusation. The Tweet is linked to those reports, in that it adds a name that was not in the reports themselves. So it is by implication a repetition of the accusation with the addition of the name which had previously been omitted.
88. The effect of the repetition rule is that the Defendant, as the writer of the Tweet, is treated as if she had made, with the addition of the Claimant’s name, the allegation in the Newsnight and other media reports which had previously been made without his name. It is an allegation of guilt. I see no room on these facts for any less serious meaning. The fact that the accused’s denial was also reported in media (other than Newsnight) may be one of a number of factors that the Defendant can rely on in mitigation of damage, but it does not reduce the seriousness of the allegation.

Nothing much to argue with there in my view. Sally Bercow has now settled with Lord McAlpine and released a statement which included the following:
‘Today’s ruling should be seen as a warning to all social media users. Things can be held to be seriously defamatory, even when you do not intend them to be defamatory and do not make any express accusation. On this, I have learned my own lesson the hard way.’

Some interesting legal questions do arise. One is whether the result would have been different if the Defamation Act 2013, s 1 had applied. That would have enabled Sally Bercow to plead that, {i}in the context of all the other allegations made by others{/i}, no ‘serious harm’ was caused by this one tweet. It raises issues too about how best to deal with dribs and drabs of allegations that, when collated, amount to serious allegations but which individually amount to very little. A second issue, and one for real defamation experts not me, is what protection is offered by the use of ‘allegedly’ by the likes of Ian Hislop when repeating allegations that are news to a wider audience of the kind that watches Have I Got News For You. But the most relevant issue for IT lawyers was highlighted by the regret expressed by Lord McAlpine’s solicitor about the fact that allegations like those unfounded and appalling allegations connecting Lord McAlpine with child sexual abuse remain forever on the Internet. He may be well advised to read the {recent judgment in the High Court in Northern Ireland:}. I wonder if he will become a leading advocate of the EU’s data reform package and the supposed right to be forgotten in particular.