Why Sally Bercow deserved to lose the defamation case and why it won’t chill Twitter

The words “*innocent face*” were ruled defamatory by the England and Wales High Court this week. The words appeared in Twitter and the UK Telegraph gleefully identified the tweeter Sally Bercow as a “Labour activist” but this case has nothing to do with her politics.

The full text of Bercow’s tweet was “Why is Lord McAlpine trending? *Innocent face*” which she wrote on November 2, 2012. Terse smart-assed bon mots are common on Twitter and rarely actionable. The problem was the meaning in Bercow’s tweet. The BBC Newsnight program had just aired explosive allegations of a 1980s-era Tory sexually abusing boys in North Wales in the 1970s and 80s. The BBC didn’t name the Thatcher era adviser, but many on Twitter identified Alistair McAlpine as the suspect.

Lord McAlpine started to list among the trending subjects in Twitter. If Sally Bercow had just asked “Why is Lord McAlpine trending?”, there would have been no case to answer. Bercow could simply have said she was genuinely bewildered. But the “*innocent face*” complete with emotion-defining asterisks undermined that argument. Bercow knew full well why Lord McAlpine was trending and was stirring the pot with her 56,000 followers. Unfortunately for Bercow, McAlpine was innocent of the charges.

The BBC commissioned the Newsnight story from an independent not-for-profit news organisation called the Bureau of Investigative Journalism. BIJ’s Angus Stickler pitched the child abuse story to acting Newsnight editor Liz Gibbons. Stickler was accusing McAlpine in his piece but did not have enough evidence to name him. Stickler’s centrepiece interview was with sexual abuse victim Steve Messham at his Wrexham care home. Messham said he had been taken in a car to a local hotel and abused more than a dozen times. Newsnight said the abuser was “a prominent Thatcher-era Tory figure”. In editorial conferences, Gibbons thought about offering McAlpine a right of reply in the story but felt that was not appropriate as he was not named.

Stickler’s story was based on mistaken identity. The Waterhouse Inquiry of 1997 into child abuse in Bryn Estyn Children’s Home in north Wales had previously examined Messham’s claims. Rumour from Wrexham jail said it was McAlpine’s cousin, prominent local businessman Jimmie McAlpine who had attacked him. There was a brief media frenzy in 1998 after this rumour had changed Jimmie’s name to his more famous cousin Alistair. Waterhouse’s report in 2000 found Messham’s story had no solid evidence to back it up.

The matter rested for 12 years until Stickler re-heated it after the Jimmy Saville revelations of late 2012. A year after his death, Saville was accused of 214 acts of child sexual abuse over 50 years, many at BBC studios. The BBC was aware of rumours of dodgy behaviour but did nothing. Even after Savile died in 2011, Newsnight prepared a report on his sexual antics but shelved it for reasons still not entirely clear.

A year later with the Savile allegations in the open, the BBC agreed to commission the BIJ piece. But they failed to heed warning signs. A day before the show went to air, BIJ boss Iain Overton added fuel to the fire. At an Oxford debate on the media’s influence on politics, he mentioned a major expose airing on the BBC the day after. After the Chatham House rules debate, Channel 4 News’s political correspondent Michael Crick asked him was the program about McAlpine. Overton replied with a non-denial denial “Well you said it”. Crick did what the BIJ and BBC didn’t and contacted McAlpine, who denied the allegations.

On the morning of the airing, the Overton-Crick conversation did the rounds but Overton didn’t stop there. He took to Twitter and said “If all goes well we’ve got a Newsnight out tonight about a very senior political figure who is a paedophile.” While the BBC was alarmed about Overton’s tweet and got him to apologise, it decided to go ahead with the airing. Its defence was the pool of people mentioned was large enough to avoid individual identification.

The alarms continued to ring. Crick took to Twitter to say “the ‘senior political figure’ due to be accused by BBC of being a paedophile denies allegations and “tells me he’ll issue libel writ agst BBC.” Crick went to air on Channel 4 News at 7pm saying a “former senior Conservative official” denies abuse. The BBC Show aired three and a half hours later. It did not use those final hours to offer a right of reply, despite Crick’s warning McAlpine would sue. An experienced Newsnight editor, who might have seen the problem, was unavailable having been suspended for his role in the Saville story.

As soon as Newsnight aired, those who knew what Overton told Crick, aired their views online. George Monbiot wrote: “I looked up Lord #McAlpine on t’internet. It says the strangest things.” Monbiot later apologised to McAlpine and made a legal settlement, to carry out work amounting to £25,000 for three charities.

Monbiot admitted he contributed to the “febrile atmosphere” and the redtop media went berserk after these hints. They laid siege to the 70-year-old McAlpine’s house. McAlpine was photographed packing up and leaving home with his suitcase. Within 24 hours the Guardian proved the BBC Newsnight program was wrong. It did the research into the Waterhouse Inquiry that Stickler did not. Within 24 hours Messham apologised for mistaken identity and Newsnight and BIJ were in the poo. The BBC and ITV later paid out £310,000 in libel damages to McAlpine and dozens of Twitter users made donations to charity over the false claims.

Yesterday Sally Bercow faced court.  Britain’s most senior libel judge, Justice Tugendhat, ruled the tweet was defamatory and had falsely tarred McAlpine as a paedophile. “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,” Tugendhat said. “If I were wrong about that, I would find that the tweet bore an innuendo meaning to the same effect.”

Tugendhat said “sensible readers” among Bercow’s 56,000 followers would have understood the meaning of *innocent face* to be “insincere and ironical”. It was “the last piece in the jigsaw” linking McAlpine with the allegation of guilt of child sexual abuse. “I see no room on these facts for any less serious meaning,” Tugendhat concluded. As media lawyer Gerard Cukier said, anyone can comment on any matter of public interest as long as the comments can be recognised as such, not “statements of facts or imputations such as the judge held Bercow’s comments to be.”

Bercow crossed the line further than Monbiot. Despite the hoo-hah over “the most expensive tweet in history” she can afford the fine; McAlpine did not pursue the small fry. It is nonsense to suggest it will have a “chilling effect on social media”. Millions of users won’t stop giving opinions – but they might be more careful how they express them. Twitter is used in many different ways, often badly, but not all end up in court.

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One thought on “Why Sally Bercow deserved to lose the defamation case and why it won’t chill Twitter

  1. I am afraid this article overlooks many relevant points – most of all the point that the judge ignored previous legal precedent concerning apportioning liability/damages and the need to consider any compensation in the context of the totality of the publications/broadcasts and compensation (£310,000) received in other settlements to date. You cannot single out one individual’s publication and pursue it as if it was the sole or main course of the damage. All the publications and broadcasts have to be considered together. In that context this seven word tweet should not have been taken forward as the costs of pursuing it outweighed the further vindication McAlpine could receive.

    Had the judge not departed from the correct legal position, Sally Bercow’s offer of settlement would probably have been considered reasonable – if not generous.

    You are wrong about people being scared to voice opinions. The judge has just departed from the previous recent trend of good common sense decisions. Now people will need to get a lawyer to check their tweets for all sorts of ludicrous interpretations before pressing the enter button. Not only that the judge has now given the green light for McAlpine and other libel litigants to demand huge sums from individuals in mult defendant cases without their being any restraint on the compensation should one of the cases go to court. In theory any libel litigant could collect millions when the top libel award ever was probably no more than £250,000.

    As it is, the vast majority of commentators are focusing on the meaning of the words when that is not the clincher. To over-analyse meanings and lose sight of the wider context can often cause the wrong outcome. (see Waterson V Lloyd). Anyway if you wish to check the above guidance read Smith V ADVFN Plc – a multiple defendant libel case where the correct legal position is set out (and was incidentally endorsed by this judge)

    A sad time for freedom of speech and it seems no one has picked up on the crucial points I have mentioned above. That’s the problem when you focus on one thing but ignore everything else. The judge may have got the decision on meaning technically correct but he has ignored all the other considerations. You have wonder why.

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