Lord McAlpine Wins Sally Bercow Libel case

I’ve written on the topic of the law and social media before, specifically how to avoid being arrested for the things you post, anyone who is interested can see my previous article here.Apparently though people aren’t following my advice to use common sense before they click post, that’s the conclusion I’ve reached having just finished reading the judgement of Mr Justice Tugendhal of the High Court in the case of The Lord McAlpine of West Green v Sally Bercow. Anyone interested in reading that for themselves can find the judgement here.

On a side note as a Twitter novice I’ve learnt a lot from this case about the nuances of the site. The background to this case is that after a BBC Newsnight report implicating “a leading Conservative from the time” in allegations of Child Abuse at a children’s care home. Lord McAlpine was then named on social media sites as being the leading Conservative being referred to, I must stress that was completely incorrect but that’s the nature of rumours, they do implicate the wrong people.

What Sally Bercow did was to send a Tweet which read “Why is Lord McAlpine trending?” which is perfectly innocent question until you add in the “*innocent face*” emoticon that Mrs Bercow did. That was the deciding factor for the judge in this case, and anyone else with a modicum of common sense, that meant the tweet changed from an ‘innocent factual question (as Mrs Bercow alleged) into meaning that Lord McAlpine was guilty of sexually abusing boys.

Now there are two issues that immediately jump out at me in this case, first is Mrs Bercow’s failure to engage her brain when she is using social media and second is the risk that social media sites like Twitter can be used to implicate innocent people in horrendous crimes. The first issue probably comes as no surprise to anyone who is remotely familiar with Mrs Bercow *cough* Celebrity Big Brother *cough*. The second is a serious issue that I’ve touched upon in my pervious articles. People need to consider what they are actually publishing on social media sites. Most people are probably guilty of telling a tasteless joke to a few friends, I certainly am. But people fall into the trap of thinking that sites like Twitter are analogous to this situation when they very clearly are not, Mrs Bercow’s followers at the time of her Tweet numbered around 56,000. There is a huge difference between talking to 4 or 5 friends and (to use a metaphor I’ve used before) stepping up to the microphone in a busy theatre that is Twitter and shouting as loud as you can.

The risk of damaging rumours being created goes up significantly in the Social Media forum and Lord McAlpine is fortunate he has the money to pursue actions like this against people who made these types of posts. In fact the scales have probably tipped in terms of publicity of him being innocent (thanks to stories like this one) rather than implicating him. What I am saying here may seem pretty obvious, or at least it does to me, especially if you are in the public eye under greater scrutiny than ordinary people. But it can’t be because people keep doing these things and I keep writing about them.

I’ll sign off by saying I’ll see you next time someone does something majorly stupid, so this is going to be a daily feature *innocent face*.

By Jack Troup

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5 comments

  1. Loverat · · Reply

    I am yet to read a balanced article about this case and one which is correct in law. Even if we forget some mitigating factors about the tweet itself (O.K I agree it was unwise) and common sense and the chill to free speech, the outcome of the case is wrong in law.

    There were many points which the judge did not consider. Meaning is just one part of this. To concentrate solely on this has produced a distorted, disproportionate and wrong outcome, I know of several multiple libel and defendant cases which the judge has concluded there were defamatory statements but ‘the game is not worth the candle’ (ie the costs of pursuing the case outweigh vindication) Given that McAlpine received £310,000 in other settlements for the same libels and Sally Bercow’s tweet was not considered in the context of the totality of the publications and broadcasts, I would suggest the judge has departed from established legal precedent.

    In Smith V ADVFN the judge discussed over-compensation and shared liability of posts in detail. This judge endorsed that decision. I accept the allegations were serious but consider her small involvement in this proper context and surely whatever offer she made must have been reasonable. The judge has also given the green light to other libel claimants to demand damages on a case by case basis rather than apportioning correct and fair liability. That has serious implications for free speech.

    I am not saying that the decision on meaning is wrong technically and legally. That is not the point. It is the failure to look at the wider picture which has been the failure here. Judging by many of the articles I have read most legal commentators also seem to have focused too much on meaning and little on anything else.

    I think the problem here was the way the case was managed and there seemed to be no provision to argue the abuse of process point (which incidentally is an argument which has prevailed in many recent cases) Had a hearing taken place to decide all the issues (as in many other cases) rather than this one dimensional and rigid approach, I believe the outcome might have been very different. Yes I accept that the judge has issued a decision which stands. However hopefully you will agree with me that the outcome of the case is clearly wrong – once you’ve reviewed the guidance above.

    1. Thanks for the comment, its always nice to get different points of view and have a bit of a discussion around issues like this.

      I’m not sure I agree with you that the focus on the meaning of the tweet is wrong. It was an issue of contention between the parties and needed to be determined, in fact the purpose of the hearing was to decide the meaning of the tweet.

      The meaning of the tweet was also the only defence that Mrs Bercow advanced, the judge summarises submissions made on behalf of both parties at paragraphs 67-80. This would have been an ultimate defence had the judge accepted it, if the word have no defamatory meaning then there can be no action in law. I think the judge was right to give such emphasis on this point in light of the submissions made by both parties.

      I agree with you that in this case Mrs Bercow only played a small role in Lord McAlpine being wrongly identified as the man in the Newsnight report. Obviously the topic was trending so many many people must have been discussing the issue. So in the context of the media coverage of the time it does seem disproportionate to pursue Mrs Bercow.

      I do have two issues with the point however, firstly it shouldn’t be a defence to say I wasn’t the only person doing it therefore no defamation (I’m aware that you are talking of shared liability not no liability but thats the impression I think it portray’s). Secondly as neither party came close to arguing that point I think it would have been wrong (although not unheard of if you read some of Lord Denning’s judgements) for the judge to invent a defence that he hasn’t given either party a chance to argue. Therefore since Mrs Bercow has not made an application to strike out the case, nor advanced any argument towards it there cannot really be a finding of abuse of process.

      Thank you again for your comment, unfortunately I still feel this case was correctly decided, but the point you raised are very valid arguments and I’m hoping Mrs Bercow appeals so they can be given a full airing in the Court of Appeal.

  2. Loverat · · Reply

    Hi Jack

    Thanks for your response. I have made comments along similar lines on other sites, and yours is the most helpful so far. I would still disagree and add a few comments.

    My feeling about this is that Sally Bercow was punished and made an example of. As judges have pointed out before, the point of pursuing this type of action is for vindication purposes and realistically for compensation to be paid some damage should have been caused. In the context of everything which happened – the police error, BBC and ITV involvement and thousands of tweets and press – as well as the original allegations already on the internet for years (which is another argument altogether) her involvement was very limited and probably caused very little damage.

    I understand your point about having to determine the meaning. I know some cases proceed in the same way but there are many which have been decided in one hearing, dealing with all the issues including meaning, damages, abuse of process, defences – in fact all the arguments which I think should have been considered here.

    In Smith V ADVFN and many other recent cases, judges have dismissed them as an abuse of process even where statements have been held to be defamatory. In the above case the judge was dealing with 30 unrepresented defendants and all the points in their favour were actually raised by the judge. Very few were raised by the defendants. I understand that Sally Bercow being represented by Carter Ruck would be expected to raise the relevant points in her defence. However, I do not think a judge would or should ignore relevant points if they have not been raised – if by doing so it produces an outcome so wrong and disproportinate that it would be easily overturned at appeal.

    What I believe the judge should have done is considered all the issues and taken the same approach as in Smith V ADVFN. It is crucial in cases which involve multiple libels and defendants that any compensation is considered along with settlements received to date from others and in regard to the totality of the publications. I think the fact multiple libels and defendants were involved is why I would have to differ from your view that the case proceeding along ‘traditional lines’ was correct. The offer made by Sally Bercow before the hearing may well have been fair and McAlpine’s refusal to accept it possibly unreasonable – but the judge did not consider this even when McAlpine had received huge sums from others beforehand.

    By proceeding with this case in this way and reaching such an outcome, in theory McAlpine can now claim £50K off everyone else involved which could run into millions. The guidance in Smith V ADVFN is extremely clear on this. I said before the decision on a another legal forum that if the judge did not make provision to consider this, it would be clearly wrong and contradictory to current guidance in multiple libel/defendant cases. Well – whether the defence team raised the correct arguments or not, in my view the outcome produced is so distorted and disproportionate that this would be easily overturned.

    Personally my theory is that the judge made up his mind about Bercow before the hearing – just as he did with the fee exempt claimant in Smith V ADVFN. However he knew that if he proceeded along the lines of that case, Sally Bercow would have won. If you look up Waterson V Lloyd that is another recent example of a McAlpine style approach by the same judge. A Conservative prospective MP upset about some material in election leaflets produced by the Lib Dem opponent during a local election. The judge focused on meaning of the words in that case too and found in favour of the claimant. That was overturned by the Appeal Court which determined he had over-analysed the words complained of and left aside common sense – particularly when considering that this was an election campaign where mud is thrown.

    I think it is fair to say that libel law can be very subjective at times and some decisions and outcomes quite bizarre.

    However, I understand Sally Bercow has decided not to appeal and has settled with McAlpine – probably for the £50K he was reported to have demanded initially. I know I probably cannot completely convince you but hopefully any readers passing through will now appreciate the other side to this. Thanks again.

    1. Glad you found my comment helpful, although this is an issue we will have to agree to disagree on.

      As I said in my last post it’s really good to spark a debate on issues like this it is the while point of thus site. I look forward to any thoughts you have on further articles I will be posting in the next week or so.

  3. Loverat · · Reply

    I thought I should just add a link to the case I mentioned above, to show the similarities and the guidance of the judge. These are just a few relevant paragraphs to support what I said. Some interesting observations on multi libel and defendant actions. If you get time to review it and a few others such as McGrath V Dawkins, Lait V Evening Standard and Waterson V Lloyd, you should see what I mean.

    http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2008/1797.html&query=smith+and+v+and+advfn&method=boolean

    10. At the very least it is possible to conclude, even at this stage, that the strategy of “divide and rule” is inappropriate, as I have explained to Mr Smith this morning and as he is already aware. This is especially so in libel proceedings because, if they are appropriate at all, damages can only be assessed in the round (that is in the context of the overall picture). In particular, any distress and hurt feelings suffered by Mr Smith would have to be compensated by reference to the totality of the publications and not on the artificial basis of the sum total of the impact upon his feelings by one individual publication; otherwise there would, as I think he understands, obviously be a significant risk of overcompensation.

    .23. Many would be surprised to see any of this made the stuff of libel proceedings – the object of which is to restore reputation. Most people would know what was being referred to in these exchanges and make up their own minds about Mr Smith ‘s behaviour. One might well ask, in the language adopted by the Court of Appeal in Jameel, whether “the game is worth the candle”. If litigation is being used to exert pressure on people to pay money (whether for charity or otherwise) or to apologise without any regard to the overall merits, solely with a view to avoiding spending money without hope of recovery, then the court needs to ensure that its processes are not being abused.

    61. Mr O’Brien made a number of apologies on the bulletin board, but then caused further offence to Mr Smith by saying on 19 April 2007, “I still don’t like your tactics and will carry on the petition to get you banned … for totally going against the spirit of advfn – free open debate [Anonymous]”. Then, as I have recorded above, Mr Smith wrote (among a great deal more), “I demand that you make reparations in the form of GBP £10,000. I do not need to remind you that your legal costs would be far greater in court, or that you have offended more than once”. This was unpleasant and Mr Smith can hardly be surprised that people interpreted this as a threatening demand for money (and, incidentally, for a sum out of all proportion to any possible injury to reputation).

    73.First, there was the potential risk of over-compensation (to which I had referred on 12 May). It was clearly necessary for any award of damages to be made in the context of all the claims (including those settled last year). It would not be right to compensate for either injury to reputation or for hurt feelings as though any individual’s publication(s) had been the sole cause.

    102. I was grateful to Mr Eardley for his careful submissions, which brought a certain amount of order out of what at first appeared to be chaos. If one approaches these cases individually along conventional lines, those submissions appear very persuasive. Occasionally, however, it becomes necessary to stand back and take a practical approach in the light of the letter and spirit of the CPR.

    103. On the other hand, they do need to be seen in the context of the litigation as a whole. Not least, I have to bear in mind the undoubted need for these cases, if they are ever to be heard, to be heard together so as to avoid inconsistencies and over-compensation. They need to progress, if at all, in harness.

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