Judge's Ruling on Defamatory Tweet Regarding a Prominent Conservative Politician, Schemes and Mind Maps of Law

Download Judge's Ruling on Defamatory Tweet Regarding a Prominent Conservative Politician and more Schemes and Mind Maps Law in PDF only on Docsity! Neutral Citation Number: [2013] EWHC 1342 (QB) Case No: HQ12D05281 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/05/2013 Before : THE HONOURABLE MR JUSTICE TUGENDHAT - - - - - - - - - - - - - - - - - - - - - Between : The Lord McAlpine of West Green Claimant - and - Sally Bercow Defendant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Sir Edward Garnier QC & Kate Wilson (instructed by RMPI) for the Claimant William McCormick QC & David Mitchell (instructed by Carter Ruck) for the Defendant Hearing dates: 16 May 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Tugendhat : 1. This hearing is to determine the meaning of the words complained of in this libel action (“the Tweet”), and whether they are defamatory of the Claimant. The Tweet was published on 4 November 2012. The question of its meaning is being tried separately as a preliminary issue. That is not uncommon in libel actions nowadays, in cases where it is agreed that the trial will be by a judge sitting without a jury. 2. If I find that the Tweet is not defamatory of the Claimant, that will be the end of the action. If I find that it is defamatory, then the case will proceed to the assessment of damages (unless the parties reach an agreement). If I find that the Tweet is defamatory, the Defendant does not seek to defend any defamatory meaning as true, or on any other basis. I am not asked to decide the number of people who read the Tweet and understood it in a defamatory meaning. THE TWEET 3. The Tweet reads: “Why is Lord McAlpine trending? *Innocent face*” 4. People who are not familiar with Twitter may not understand the words “trending” and “innocent face”. But users of Twitter would understand. THE HONOURABLE MR JUSTICE TUGENDHAT Approved Judgment McAlpine v. Bercow 5. The Twitter website has a screen with a box headed “Trends”. It lists names of individuals and other topics. Twitter explains that this list is generated by an algorithm which “identifies topics that are immediately popular, rather than topics that have been popular for a while or on a daily basis, to help you discover the hottest emerging topics of discussion on Twitter that matter most to you. You can choose to see Trends that are tailored for you…” 6. The Defendant accepts that the question in her Tweet impliedly states that the Claimant was trending on 4 November. 7. It is common ground between the parties that the words “innocent face” are to be read like a stage direction, or an emoticon (a type of symbol commonly used in a text message or e-mail). Readers are to imagine that they can see the Defendant’s face as she asks the question in the Tweet. The words direct the reader to imagine that the expression on her face is one of innocence, that is an expression which purports to indicate (sincerely, on the Defendant’s case, but insincerely or ironically on the Claimant’s case) that she does not know the answer to her question. 8. Twitter permits users to express themselves in tweets of no more than 140 characters. Tweets are used in a similar way to ordinary conversation. People tweet descriptions of what they are doing or would like to do, jokes and gossip, and comments on people or topics at large, and anything else they want to say. They tweet using conversational words and expressions. The print outs of the Defendant’s tweets illustrate how she uses Twitter in these ways. THE PARTIES TO THE ACTION 9. The parties to this action, and the action itself, are now very well known. Apart from publicity about them on other occasions in the past, the parties have received extensive publicity since the publication of the Tweet. But I have to decide the meaning of the Tweet without the benefit of hindsight. I must decide the meaning as at the date on which it was read. 10. The Defendant is well known to the public for a number of reasons. Amongst these is that she is the wife of the Speaker of the House of Commons. She has appeared on television on a number of occasions in well known broadcasts. For present purposes what is most relevant is that she has a Twitter account on which she has tweeted regularly. On 4 November 2012 she had over 56,000 followers. 11. The Claimant is a former Deputy Chairman of the Conservative Party and a former Party Treasurer. He was a close aide to Margaret Thatcher during her time as Prime Minister. As a result of his positions and his work with the Conservative Party, he had a significant political profile during the late 1970s and the 1980s. He was made a life peer in 1984. He retired from working for Conservative Party Central Office in 1990 (that is over twenty years ago) and since 2002 has lived in southern Italy out of the public eye. THE CIRCUMSTANCES IN WHICH THE TWEET WAS PUBLISHED THE HONOURABLE MR JUSTICE TUGENDHAT Approved Judgment McAlpine v. Bercow likely subject. Newsnight did not name the politician in its Newsnight report on Friday night… The politician at the centre of accusations has denied the claims and said he is prepared to sue the BBC for libel. He told The Telegraph the allegations were totally untrue ... I have never been to this children’s home. The fact is that if they publish anything about me they will get a writ in the morning, I wouldn’t wait two minutes. Since the Jimmy Savile sex abuse allegations surfaced, politicians have been raising questions about other historic abuse cases…” 23. In the MailOnline website as from 00:45 on 4 November 2012 there was published the following: “Tory rapist told me he’d kill me if I told police”: … Steven Messham… said on one occasion he was abused in a hotel room by the political figure … Two senior Conservatives accused of being involved with a ‘paedophile ring’… A sex abuse victim who told the BBC’s Newsnight he was raped by a ‘leading politician from the Thatcher years’ as a child has said the top Tory told him he’d be killed if he told police. Steven Messham revealed he was contacted by detectives yesterday following Friday’s programme which alleged he was raped ‘more than a dozen times’ by the man described by Newsnight as a ‘shadowy figure of high public standing’. … Despite a string of damning allegations, Newsnight said it didn’t have ‘enough evidence’ to name the politician, sparking angry claims on Twitter that the Beeb had ‘bottled it’. [The article includes an image of two tweets which read] ‘P… M… So #Newsnight bottled it again tonight re exposing a paedophile?…’ ‘B … Speculation and gossip now rife’… Newsnight took the decision despite Mr Overton’s crystal clear message online: ‘If all goes well we’ve got a Newsnight out tonight about a very senior political figure who is a paedophile’ [and it printed an image of Mr Overton’s tweet]… THE HONOURABLE MR JUSTICE TUGENDHAT Approved Judgment McAlpine v. Bercow It piles more pressure on the beleaguered corporation after last month it was revealed Newsnight dumped an investigation into paedophile Sir Jimmy Saville, even though they had interviewed his victims…” 24. In the issue of The Sunday Telegraph dated 4 November there is included: “Senior Tories accused over child abuse… During the Waterhouse inquiry it was claimed that abuse took place at the country home of a senior Tory politician… One of the politicians named at the inquiry, a former confidant of Baroness Thatcher who is still alive but retired from public life, has firmly denied any involvement. The latest allegations follow claims last week that another of Lady Thatcher’s closest aides was implicated in the north Wales scandal”. 25. On the other hand Mr McCormick draws my attention to other media reports which contain either no details, or fewer details, about the alleged abuser which might identify him. He also reminds me that the media reports to which the Claimant refers are not in the tabloid newspapers which have the largest circulation figures. 26. In the issue of The Daily Mirror dated 3 November 2012 there is included: “Newsnight in battle to out paedo at No 10; Beeb in new pervert scandal. Report will expose a ‘senior political figure’ … The BBC was yesterday preparing to expose a ‘senior political figure’ as a paedophile… [then it too quotes Mr Overton’s tweet] … There was an internet frenzy of speculation about the identity of the pervert following the tweet. Channel 4’s Michael Crick, who used to work on Newsnight, also took to Twitter to claim he had spoken to the man involved, who had not been contacted by the BBC. He tweeted: ‘Senior political figure due to be accused tonight by BBC of being paedophile denies allegations + tells me he’ll issue writ against BBC’. The battle to expose the public figure comes weeks after the BBC was rocked by revelations that a Newsnight investigation had uncovered evidence of Jimmy Saville’s sick activities last year but was axed by the editor”. THE HONOURABLE MR JUSTICE TUGENDHAT Approved Judgment McAlpine v. Bercow 27. The print issue of The Daily Telegraph for 3 November identifies the accused person only as ‘politician’, ‘senior figure’ and ‘senior political figure’. It quotes Mr Overton’s tweet in full. 28. The print issue of The Guardian for 3 November contains similarly limited identifying details: “Senior figure from Thatcher years ‘vehemently denies’ allegations of paedophile activity, according to Channel 4 News. A former senior political figure is said to have rejected claims that he sexually assaulted one of the hundreds of children who were abused over two decades in Welsh children’s homes”. 29. It is common ground between the parties that these very well known news media, and other news media which published similar stories, are widely read in England and Wales. 30. I infer the following matters are more likely than not, and so that the Claimant has proved them: (1) there were a substantial number of viewers of the Newsnight report itself, not least because of the unusual way that it had been trailed on Twitter by Mr Overton; (2) by early on 4 November a very large number of people in England and Wales had read one or more of the media reports I have quoted; (3) the people who viewed the Newsnight report and the people who had read one or more of the media reports referred to by Sir Edward included a substantial number of readers of the Tweet. 31. Mr McCormick asks me to note certain matters that the Claimant has not attempted to prove in court. The Claimant has not pleaded in his Particulars of Claim tweets dated earlier than the Tweet which referred to the Claimant. There are afew in the bundle which are of later in date, and which do not assist me in what I have to decide. 32. Obviously if the Claimant was trending (as the Defendant’s Tweet said he was) then there must have been many tweets referring to him which preceded her own. The Claimant does not ask me to make, and I do not make, any finding as to what those other tweets said about the Claimant. I find that there were such tweets, because the Defendant’s Tweet said there were (and it is not suggested she was mistaken about that). There are in the bundle a few tweets dated on 2 nd and 3 rd November which name the Claimant. They are of assistance to me only to this extent: they do not name him in connection with any story other than the Newsnight report. WHAT THE PARTIES CONTEND THAT THE TWEET MEANT 33. The Claimant’s case is that in their natural and ordinary meaning, and/or in the alternative, by the way of innuendo (a legal term I explain below) the Tweet meant that he was a paedophile who was guilty of sexually abusing boys living in care. 34. The Defendant denies that her Tweet meant that, or that it meant anything defamatory of the Claimant. Her case is that the question she asked in her Tweet was simply a question. She accepts that the question implied that the Claimant was trending, but that by itself is entirely neutral, and there is nothing else to be inferred from the THE HONOURABLE MR JUSTICE TUGENDHAT Approved Judgment McAlpine v. Bercow 48. In Jones v Skelton [1963] 1 WLR 1362 at 1370-1 the court explained what is meant by a natural and ordinary meaning as follows: “The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. …. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words.” 49. An innuendo meaning (in the technical legal sense) is something more than a meaning that can be implied from the words complained. It is a meaning which can be implied from the words complained of, but only if the reader also knows other facts (which are not general knowledge). These are generally called extrinsic facts. 50. In respect of an innuendo meaning, a claimant must, in addition to identifying the meaning complained of, prove the extrinsic facts relied upon and prove that these facts were known to readers (Gatley on Libel & Slander 11 th ed. §3.19). The claimant will have been defamed in the minds of those readers, but not in the minds of the readers who did not know the extrinsic facts. 51. There may be an issue between the parties whether the circumstances of a publication amount to extrinsic facts, which have to be proved as such to support an innuendo, or whether they are general knowledge, which can be relied on in support of its natural and ordinary meaning. Either way, the court must find that the facts are known to the reader. 52. In the present case there is no dispute about the truth of the fact that the Claimant was a prominent Conservative politician from the Thatcher years. The issue is as to whether any reader of the Tweet knew who the Claimant was. 53. In the present case the Tweet would mean little to a reader who had no knowledge of any of the Claimant, of the Newsnight broadcast or of the media reporting of the Newsnight broadcast in the period immediately preceding the Tweet. So in the present case I have to decide whether the Newsnight report and the media reporting are to be treated as part of the general knowledge of the Defendant’s followers who read the Tweet on 4 November 2012, or whether they are to be treated as extrinsic facts, that is to say, knowledge that would be known only to a limited number of people. If they would be known only to a limited number, then the Claimant must prove that there were readers in that number, and how big that number was. 54. In cases where the extrinsic fact is obscure a claimant will have to adduce evidence from witnesses or documents to prove that the readers of the words complained of knew the extrinsic facts. But in other cases a claimant may rely on an inference prove that some readers had the necessary knowledge of the extrinsic facts. THE HONOURABLE MR JUSTICE TUGENDHAT Approved Judgment McAlpine v. Bercow 55. In Fullam v Newcastle Chronicle & Journal Ltd [1977] 1 WLR. 651 the plaintiff complained that an article in a local newspaper meant that he had fathered an illegitimate child. But the meaning in question could only be understood by readers of the newspaper who knew facts about the plaintiff’s wife and child (the date of the marriage and the date of the birth) which were not set out in the article he complained of. At 659 Scarman LJ explained: “There may well be cases in which it would not be necessary to plead more than the fact of publication by newspaper and the extrinsic circumstances, leaving it to be inferred that there would be readers with knowledge of the facts [about his wife and child]. For instance, the facts may be very well known in the area of the newspaper's distribution — in which event I would think it would suffice to plead merely that the plaintiff will rely on inference that some of the newspaper's readers must have been aware of the facts [about his wife and child] which are said to give rise to the innuendo.” 56. In the present case the Claimant’s primary case is that his having been a politician, the gist of the Newsnight report, and the reporting of it by the media, were so well known to Twitter followers generally that these facts should be treated as part of their general knowledge. If he is wrong about that, his alternative case is that he relies on inference. He submits that the court should infer that there probably were some readers who knew these facts, as explained in the Fullam case. The test of reasonableness 57. The legal principles to be applied when determining the question of meaning are in part derived from the Rubber Improvements case. They were summarised by Sir Anthony Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130 at [14]-[15] (where “he” means “he or she”): “The legal principles relevant to meaning have been summarised many times and are not in dispute.... They may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over- elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any “bane and antidote” taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question.” THE HONOURABLE MR JUSTICE TUGENDHAT Approved Judgment McAlpine v. Bercow 58. It is important in this case to stress point (6). The Tweet was not a publication to the world at large, such as a daily newspaper or broadcast. It was a publication on Twitter. The hypothetical reader must be taken to be a reasonable representative of users of Twitter who follow the Defendant. What the characteristics of such people might be is in part agreed, and in part for submissions by the parties as to what I should infer from what is agreed. 59. The Defendant’s tweets which are in the court bundle include a number which relate to politics or current affairs as well as a number which do not. Because of that, and because of her political links, Sir Edward submits that followers of the Defendant probably included a significant number who shared her interest in politics and current affairs. A significant number retweeted the Tweet to their own followers. The fact that the Defendant’s followers use Twitter implies that they like to be up to date with such matters. I did not understand Mr McCormick to dispute this, and I would infer that it is the case. 60. It is also common ground between the parties that, in the past, some Twitter users have used Twitter to identify alleged wrongdoers, and others whom the traditional media have not identified when reporting a story. An example of this was in 2011 when Twitter users identified a footballer who had obtained a privacy injunction in an action where he was identified in the public court papers only by initials. Although the Defendant does not dispute this, she does not admit how great a number of readers of the Tweet would have known this fact about how Twitter was used (or any of the other facts which she agrees to be facts). And she does not accept that even those readers who did know that Twitter had been used in this way in the past (or the other agreed facts) would understand the Tweet to mean what the Claimant contends it means. 61. There are, of course, also references in the newspaper reports I have quoted above to Twitter being used in this way in this very case. Examples are the “frenzy of unsubstantiated speculation on social networking sites, with several politicians being named as the likely subject” (paras 22 and 26 above) and the tweets of which The MailOnline published images (para 23 above). 62. The law is clear that words may be defamatory in whatever form they are used. A question, or a rhetorical question, or any other form of words may, in principle, be understood to convey a defamatory meaning. The meaning of a statement or question depends on the context. The extent to which a reader can draw defamatory inferences from neutral words depends on the context. The writer is not responsible for an inference unless it is one that a reasonable person would draw: Gatley para 3.17. 63. Although there is no dispute that the principles listed in Jeynes set out the law to be applied, there is a difference of emphasis between the parties in relation to the words in principle (2) “and someone who does not and should not, select one bad meaning where other non-defamatory meanings are available”. 64. There was in the early 17 th century a rule of law that words alleged to be defamatory were always to be construed in the most inoffensive sense reasonably possible (see Ajinomoto Sweeteners Europe SAS v ASDA Stores Ltd [2010] EWCA Civ 609 at para [1]). This rule was to discourage suits and prosecutions. Or as we would express it today, it was to discourage litigation which might interfere with the right of freedom THE HONOURABLE MR JUSTICE TUGENDHAT Approved Judgment McAlpine v. Bercow of child abuse it would be almost impossible to tweet about anything. She cannot reasonably be understood as adopting Mr Messham’s allegations. Even if she is understood to refer to those allegations at all, she is referring only to a controversy, and IS not taking sides. 79. Mr McCormick submits that the Defendant’s followers would know that there can be any number of reasons why a person might trend, and it is not necessary for the Defendant to suggest any particular reason why the Claimant might have been trending. That is why she asked the question. 80. Mr McCormick emphasises that the Claimant had not been named in the Newsnight report or the media relied on by him, and that by 2012 very few people would be likely to know or to remember what he had done some 20 years before. At best he was only one of a number of people from the Thatcher years who would have fitted the very vague description given of the alleged abuser. The Newsnight report and other media reports did not just report Mr Messham’s allegation. They also reported that the person who he identified had unequivocally denied the allegation, and that the BBC had insufficient information to name that person. Just because Twitter was sometimes used by tweeters to disclose the names of people when others were trying to keep the names out of the public eye, it would not be reasonable for a reader to infer that that was what the Defendant was doing with her Tweet. DISCUSSION 81. In my judgment followers of the Defendant on Twitter probably are very largely made up of people who share her interest in politics and current affairs. They probably are people who, by 4 November, knew these elements of the story told in the Newsnight report: that Mr Messham had been abused at a children’s home in Wales some 20 years or so before, that the man he identified as his abuser was a leading Conservative politician from that time, and that the decision of the BBC not to name the person Mr Messham identified was the subject of public controversy. 82. In my judgment some followers of the Defendant probably did also have prior knowledge of the Claimant as a leading Conservative politician of those years. Some followers probably did remember him in that capacity, and some others probably had sufficient interest in politics to have read about him. 56,000 is a substantial number of people, although I do not find that all of those read the Tweet. 83. However, in my judgment it was not necessary for a reader of the Tweet to have had any prior knowledge of the Claimant as a leading politician of the Thatcher years in order for them reasonably to have linked the Tweet naming him with what I have found they knew about the allegations in the Newsnight report. This is because the Tweet identified him by his title, Lord McAlpine, that is to say, as a peer of the realm. It is common knowledge that peers nowadays are generally people who have held prominent positions in public life, in many cases in politics, including as members of the House of Lords. The Tweet asked why the named Lord was trending, in circumstances where (1) he was not otherwise in the public eye on 4 November 2012 and (2) there was much speculation as to the identity of an unnamed politician who had been prominent some 20 years ago. THE HONOURABLE MR JUSTICE TUGENDHAT Approved Judgment McAlpine v. Bercow 84. In my judgment the reasonable reader would understand the words “innocent face” as being insincere and ironical. There is no sensible reason for including those words in the Tweet if they are to be taken as meaning that the Defendant simply wants to know the answer to a factual question. 85. The Defendant does not have any burden of proof in the issue I have to decide. She does not have to offer an alternative explanation of why a peer, whose name and career is known to few members of the public today, might have been trending on 4 November 2012 without her knowing why he was trending. But where the Defendant is telling her followers that she does not know why he is trending, and there is no alternative explanation for why this particular peer was being named in the tweets which produce the Trend, then it is reasonable to infer that he is trending because he fits the description of the unnamed abuser. I find the reader would infer that. The reader would reasonably infer that the Defendant had provided the last piece in the jigsaw. 86. That leads to the question: what is the level of seriousness of the allegation that the Claimant fits the description of the unnamed abuser? 87. The Newsnight report was not a report of an investigation by the police (or by anyone else). Nor do the media reports suggest that they were reporting on an investigation. The Newsnight report, and all the other reports are of the allegations of a man who complained he was sexually abused. It is true that some reports also included that the unnamed person who is accused of the crime has vehemently denied it. But what is reported is the accusation. The Tweet is linked to those reports, in that it adds a name that was not in the reports themselves. So it is by implication a repetition of the accusation with the addition of the name which had previously been omitted. 88. The effect of the repetition rule is that the Defendant, as the writer of the Tweet, is treated as if she had made, with the addition of the Claimant’s name, the allegation in the Newsnight and other media reports which had previously been made without his name. It is an allegation of guilt. I see no room on these facts for any less serious meaning. The fact that the accused’s denial was also reported in media (other than Newsnight) may be one of a number of factors that the Defendant can rely on in mitigation of damage, but it does not reduce the seriousness of the allegation. 89. If the Defendant wished to avail herself of a public interest defence, such as Reynolds privilege or reportage, she would have had to plead it. She has not done so. Given the well known risk that a victim of a real crime may make a mistaken identification of the criminal, I do not find it surprising that she has not pleaded any defence of that kind. CONCLUSION 90. It follows that, for these reasons, I find that the Tweet meant, in its natural and ordinary defamatory meaning, that the Claimant was a paedophile who was guilty of sexually abusing boys living in care. 91. If I were wrong about that, I would find that the Tweet bore an innuendo meaning to the same effect. But if it is an innuendo meaning it is one that was understood by that small number of readers who, before reading the Tweet on 4 November, either THE HONOURABLE MR JUSTICE TUGENDHAT Approved Judgment McAlpine v. Bercow remembered, or had learnt, that the Claimant had been a prominent Conservative politician in the Thatcher years. 92. At this stage I am not asked to find how many followers of the Defendant read the Tweet or understood it in the meaning I have found it bore.