It is fair to say that most people now know the background. On 2 November 2012, the BBC broadcast an edition of Newsnight which included allegations (subsequently established to be incorrect) by a former care home resident that during the 1980’s he had been abused by a prominent Conservative politician. The BBC did not name anyone within the story but subsequently a significant number of people, speculating about the politician’s identity on Twitter, linked Lord McAlpine to the Newsnight report.
Both the BBC and ITV (who on 8 November 2012 were embroiled in a separate incident where a list of alleged paedophiles was briefly shown onscreen while being handed to Prime Minister David Cameron by his interviewer, Philip Schofield), have settled threatened claims by Lord McAlpine for their part in the story. In each case, substantial damages (reportedly of £185,000 and £125,000 respectively) have been paid by way of compensation. Lord McAlpine has now seemingly turned his attention on the very substantial numbers of individuals (reckoned by some to be in the thousands) who used Twitter to link his name to the original story, thereby defaming him.
The story demonstrates the remarkable extent to which, even after several high profile cases, individuals appear to believe that Twitter and other Social Media forums are somehow “outside the law” and not subject to the same rules as more mainstream publication. There seem to be several reasons for this apparent sense of immunity to the laws of defamation, stemming from the nature of the “new” technology in question, but whatever the basis for those beliefs they are entirely wrong.
Posters who are using a pseudonym do appear to be emboldened in the statements they make online, believing that it will not be possible to discover their true identity. While potentially costly and time-consuming, it is far from impossible to do so. Orders can be obtained, if necessary at quite short notice, to require the operators of sites such as Twitter, Facebook or Hotmail (other social media are also available) to give up information about their users, where it seems that unlawful activity has taken place. On some occasions this will yield the true name and e-mail address of the perpetrator. Where it does not, it may nevertheless be possible to obtain information about the IP address of the user’s computer, from which the physical location of that machine (and therefore of the user) can also often be determined.
Users also appear to be led astray by the fact that some of them are based in jurisdictions (such as the United States) where free speech is afforded stronger constitutional protection than is the case in this jurisdiction. The multi-national nature of social media means that even those in more restrictive jurisdictions see connections of theirs able to make statements on a wide range of topics, seemingly with impunity, and seek to emulate them. As far as internet defamation is concerned, however, publication of the defamatory statement takes place where the offending article is read, meaning that a defamatory statement published online by a user based in Calcutta about a victim based in Washington DC may nevertheless be actionable in England.
Finally, and often overlooked, there is the fact that the traditional media in this country have, over the past eighteen months or so, had a vested interest in inculcating a belief in the immunity of online publication. During the press’s determined assault on super-injunctions and other anonymised restrictions on publication during 2011, a semblance of strategy seemed to be emerging. Where a celebrity was known to have obtained such an order (and of course the press were singularly well placed to know about that by virtue of the fact that they were served with the orders), their name would rapidly and anonymously be broadcast on the internet. Internet users, a large number of whom are vociferous proponents of free speech, could be relied upon to disseminate the information widely. If a politician or two could be persuaded to name the individual, under the cloak of parliamentary privilege, so much the better. The press would then apply to Court for the injunction to be discharged on the basis that the information was already out in the public domain.
It is difficult to know whether the press took a proactive part in this apparent strategy, or whether they simply were content to make use of a general popular objection to anonymised orders for their own ends. Either way it was certainly the case that a significant number of column inches were devoted to the portrayal of the internet as a haven of free speech, in which individuals could express themselves without fear of the consequences. Some of those who bought into that fiction are now those who are likely to find themselves on the receiving end of damages claims for defamation.
It is true that the law can be slow to keep up with developments, whether in technology or otherwise. The apparent inability of parliament to legislate in relation to privacy is causing on-going uncertainty for litigants on both sides, and the latest Defamation Bill is taking a remarkable amount of time to pass into law. Nevertheless, for publications that are clearly defamatory, it is important to bear in mind that the law makes no distinction between traditional media and the new/social media of the internet. If Lord McAlpine makes good on his threats and pursues even some of those who felt free to defame him so thoughtlessly, perhaps this is something that users on the internet will finally start to take into account.