It has the makings of a pub quiz question: What do Sally Bercow, Nick Griffin, Lalit Modi, George Monbiot and Rupert Murdoch have in common? For the purposes of this article, they are some recent examples of those finding themselves in legal trouble on Twitter. They are unlikely to be the last.
Of those listed above Bercow and Monbiot are the most spectacular recent examples of libel by Twitter. Both have apologised to Lord McAlpine for their Tweets which identified him by name as the man at the centre of the paedophile rumours following the BBC Newsnight programme, in which he was not named.
What about Rupert Murdoch? Murdoch followed his Tweet calling the "celebrities" who addressed the Prime Minister on the issue of newspaper regulation "scumbags" with a direct attack on Hugh Grant, arguing in a curious defence of his journalists that they were in some way superior to Mr Grant because they did not "abandon love child's" [sic]. Once it was pointed out to him that this allegation was false and defamatory, he used Twitter to apologise.
The first and currently only recent example of a Tweet being sued upon is the high profile case of former New Zealand Cricket Captain, Chris Cairns and IPL Chairman Lalit Modi. In summer 2012, Mr Cairns achieved £90,000 for damages and aggravated damages in respect of Modi's Tweet alleging that Cairns was guilty of match-fixing.
This substantial award of damages was endorsed unanimously by the Court of Appeal. The judgment addressed specifically the unique threat of internet dissemination:
"we recognise that as a consequence of modern technology and communication systems any such stories have a capacity to "go viral" more widely and more quickly than ever before. Indeed it is obvious that today, with the ready availability of the world wide web and of social networking sites, the scale of this problem has been immeasurably enhanced, especially for libel claimants who are already, for whatever reason, in the public eye. In our judgment, in agreement with the judge, this percolation phenomenon is a legitimate factor to be taken into account in assessment of damages."
So, in terms of libel: there is no doubt that users of Twitter should understand that they will be liable for what they publish and potentially have to pay a claimant significant sums due to the "percolation phenomenon", sums that newspapers may be able to swallow, but private individuals (Modi and Murdoch aside) may not. It is well known that injunctions in libel are nigh on impossible.
In privacy an injunction is the primary and most effective weapon. It is here that the law finds Twitter more troublesome. In the case of CTB v News Group Newspapers the Court's interim injunction was made futile by a Twitter campaign to name the footballer. Other privacy injunctions suffered similar fates in a frenzy not dissimilar to the recent naming of alleged paedophiles.
In a press conference last year to present the findings of the committee on super-injunctions the Lord Chief Justice, Lord Judge, stressed that we would "have to find ways.. to prevent the misuse of modern technology". So what is the answer? Neither Twitter nor its users wish to unwittingly find themselves in trouble in defamation, privacy or, worse still, for having committed a criminal offense. For the time being let's hope high profile casualties such as those identified above may help educate others as to the risks of publication.