Collyer Bristow successfully represented cricketer Chris Cairns in his recent high profile defamation action against Lalit Modi in England's first Twitter libel trial. When protecting the trading reputation of a company, or the personal reputation of a well-known individual who has a "brand", the law of libel can often provide a remedy.
Twitter is an online social networking and micro-blogging service. Users can send and read text-based posts of up to 140 characters, known as "Tweets", instantaneously. Created in 2006 it has rapidly gained worldwide popularity, with over 140 million active users in 2012, generating over 340 million Tweets daily.
On 5 January 2010 Lalit Modi, formerly the Commissioner of the Indian Premier League, the popular Twenty/20 cricket franchise, published on his Twitter account allegations that the well-known New Zealand cricketer Chris Cairns had been removed from the list of players available to play in the forthcoming IPL tournament because of his "past record in match fixing". He repeated the allegations the same day in an interview he gave to an online cricket magazine.
While Mr Modi's Tweet was removed within 16 hours of publication, it had been automatically published to those individuals on Twitter who 'followed' him, who in turn re-Tweeted his comments to their 'followers', (and so on, to an extent the experts determined was unquantifiable). His comments were also picked up and re-published by numerous websites (mainly cricket blogs) throughout the world.
Chris Cairns refuted the allegations and demanded an immediate apology. Mr Modi refused to apologise or withdraw the allegations; instead he said he would justify them in court.
The Court's Decision
In March 2012 following an eight day trial by a judge alone, the Court completely exonerated Chris Cairns of any involvement in match fixing.
Mr Modi did not himself give evidence, but called three Indian players who played with Chris Cairns in the Indian Cricket League in 2007 and 2008. The judge expressed grave concerns about the defendant's evidence, and said in relation to one witness: "I regret to say that I cannot place any reliance on a word Mr Gupta said".
By contrast the judge held that Chris Cairns, despite being subjected to eight hours of aggressive cross-examination, was a wholly credible witness. The judge said: "Despite prolonged searching and occasionally intrusive questioning about his sporting, financial and personal life he emerged essentially unscathed".
Quantifying the extent of publication within this jurisdiction required IT expert evidence. At trial, the experts presented a joint note which estimated the number of Mr Modi's Twitter 'followers' in the jurisdiction at the time of publication who would have read the comments to be between 35 and 95. For the purposes of the trial the parties agreed a figure of 65. It was accepted there would have been substantial publication beyond that, through re-Tweeting and re-publication, but it would have been a hugely costly and disproportionate exercise to try to quantify this.
Once sufficient publication had been established, the judge applied the usual legal principles of defamation. Mr Modi's comments were plainly defamatory of Chris Cairns. To establish a defence of justification Mr Modi had to prove what he said was true (or substantially true), or that there were strong grounds for believing that Chris Cairns had been involved in match fixing. The judge held that he had "singularly failed" to do so.
Chris Cairns was awarded £75,000 in damages, which the judge increased by a factor of 20% to£90,000 because of the "sustained and aggressive assertion of the plea of justification"which included a highly charged attack on the character and integrity of Chris Cairns both during cross-examination and in the defendant's closing speech.
This being the first 'Twibel' trial, unsurprisingly the trial judge gave Mr Modi permission to appeal the amount of damages awarded. In a comprehensive judgment handed down in October 2012, the Court of Appeal held the damages award at £90,000 stating that the award was "proportionate to the seriousness of the allegation and its direct impact on Mr Cairns himself and will serve to vindicate his reputation".
The Court of Appeal made important observations on what they called "the percolation phenomenon" - upholding the Trial Judge's ruling that the capacity of an allegation to 'go viral' on the internet and particularly social media is a legitimate factor to be taken into account in the assessment of damages.
This is the first damages award resulting from publication across the Twitter network. As already mentioned the precise extent of such publication within the jurisdiction, unlike with newspapers, was impossible to quantify precisely. Not only were the numbers of readers of the Tweet difficult to establish, but the speed and range of publication were breathtaking.
There is no doubt that online social media has completely changed the landscape in defamation claims. Comments published by anyone with a significant "following" can go viral almost instantly to a global audience. As the judge observed, "nowadays the poison tends to spread far more rapidly".
Lord McAlpine's recent experience at the hands of 'the Twitterati' bears testament to this and highlights the dangers, both for the victims of libellous Tweets and for those who casually re-Tweet defamatory allegations. A re-Tweet of a libellous Tweet will give rise to a separate claim; it is not a defence to say you were merely repeating what somebody else said.
Since comments published on Twitter may not be accessible for long clients and lawyers need to act quickly. A screen shot of the words complained of must be taken without delay, since substantial damage can be done in a very short space of time. Speedy and decisive assessment of whether the comment is defamatory and, if so, action to frame a complaint is imperative.