In a judgment published on 24 May 2013, Mr Justice Tugendhat has found that Sally Bercow’s tweet about Lord McAlpine was defamatory of him.
On 2 November 2012, the BBC’s Newsnight programme broadcast a report about sexual abuse at children’s homes in Wales. One victim, Mr Messham, alleged that he had been abused at a care home in the 1970s and 1980s by “a leading Conservative politician from the Thatcher years”. The politician’s name was not disclosed on the programme or in the mainstream media, but the BBC’s decision not to name the person Mr Messham had identified became the subject of significant public debate, especially online.
Two days after the programme was broadcast, Ms Bercow tweeted the following:
“Why is Lord McAlpine trending? *Innocent face*”
While there was no doubt that Mr Messham had been a victim of child abuse, Lord McAlpine was mistakenly identified as one of the abusers.
After the tweet was published and it became clear that Lord McAlpine had been mistakenly identified, Ms Bercow apologised in four subsequent tweets, but continued to deny that her original tweet had been defamatory.
The hearing concerned a preliminary issue regarding the meaning of the tweet and whether the tweet was defamatory of Lord McAlpine.
The judge noted that the tweet asked why Lord McAlpine was trending in circumstances where (a) he had not been in the public eye for many years and (b) there was significant coverage of the allegation that an unnamed Conservative politician from the Thatcher era had sexually abused boys in care. He considered it very likely that Ms Bercow’s followers would have linked the naming of Lord McAlpine with those allegations. The tweet "provided the last piece in the jigsaw" and allowed followers wrongly to link Lord McAlpine with the allegation of child abuse.
The judge also considered that there was no sensible reason for Ms Bercow to include the words "*innocent face*" in her tweet if she simply wanted to know the answer to the factual question of why he was trending, and that the reasonable reader would have understood the words "*innocent face*" to be "insincere and ironical". The judge found that the ordinary meaning of the tweet was that Lord McAlpine was a “paedophile who was guilty of sexually abusing boys in care”, which is plainly a very serious defamatory statement.
The parties agreed a settlement, details of which were not disclosed, following the judgment.
There are still many social media users who post tweets and Facebook updates without carefully considering the potential consequences. There are always risks if you pass on a rumour, but even more so in a social media context where the allegation has the potential to go viral. If the rumour is defamatory, a defendant who repeats it is treated as if he or she made the original allegation, which can result in liability for significant damages.