To Tweet or not to Tweet!
The Court is giving strong signs that it will treat defamation and other breaches of law which take place via social media very seriously.
In the recent case of McAlpine v. Bercow  EWHC 1342 (QB), the Defendant tweeted:
“Why is Lord McAlpine trending?*innocent face*”
The Court looked at a number of aspects. The Judge found that Bercow’s followers were individuals who probably shared her political interests and who would also have been aware of the BBC Newsnight story which began the speculation over the identity of an unnamed senior conservative politician accused of child abuse. They were also likely to have known that the Claimant was, a senior conservative politician.
Despite this, the Judge held that it was unnecessary for the tweet’s reader to have any prior knowledge of the Claimant in order to link the tweet and the Newsnight Report, because the tweet named Lord McAlpine. The Court said that it was common knowledge that peers today generally held prominent positions in public life, often after a career in politics.
The Court said the tweet asked why the Claimant was trending when:-
1. He was not otherwise in the public eye;
2. There was great speculation over the identity of an unnamed former senior politician.
In this context the reasonable reader would understand the emoticon *innocent face* to be insincere and ironic. The Court therefore found that it was reasonable for the reader to infer that the reason the Claimant’s name was trending was because he matched the description of the unnamed abuser.
The tweet continued the allegation made by Newsnight, namely using the abuse that had taken place, as an allegation of guilt. The Court found that the tweet meant that the Claimant was a paedophile who was guilty of abusing boys living in care. Alternatively, it found that the tweet bore an innuendo meaning to the same effect, to those readers who, prior to November 2012, when the tweet in question and Newsnight report took place, knew the Claimant was a prominent conservative from the Thatcher years.
Following the case of Chase v News Group Newspapers Limited  EWCA CIV 1772, the Judge could have found that the words had a lesser meaning. For example, there were reasonable grounds to suspect guilt. Such a strong finding by the Judge here would appear to have been due to the use of the emoticon *innocent face*.
It would therefore seem to be sensible to omit, or at least use carefully, emoticons, that can be interpreted as showing the state of mind or intention of the tweeter.
Apparently, an out of Court settlement was reached between the parties and therefore the Court made no ruling in relation to the level of damages. However, in the other recent case of Cairns v. Modi  EWHC 756 (QB), an award of £90,000 was made which accounted for the seriousness of the allegation and the “viral” effect that Twitter has.
The Courts are treating defamation using Social Media very seriously. It is best to think carefully about your tweet and its context and meaning before you publish.