Fabled wartime British Prime Minister, Sir Winston Churchill, said, “A lie travels halfway round the world before the truth has time to put its pants on.” Now, with the proliferation of social media, and twitter in particular, a lie can circumnavigate the globe before the truth even realises it’s not wearing trousers. And it took another British political figure with as title to prove it. Indeed, the death of Lord McAlpine, who passed away in January 2014, has been attributed directly to users of Twitter by some; and I’m not sure I disagree. Imagine being a respected retired politician, a former Deputy Chairman of the Conservative Party, peacefully living out your sunset years in Italy; when one day hundreds of thousands of twitter-fiends falsely accuse you of being a paedophile. This bitter pill may or may not have killed Lord McAlpine, but the good lord put up a heck of a fight before he swallowed it – while setting a ground-breaking global media law precedent in the process.
First things first: Users of twitter are not exempt from any laws or ethical standards that the mainstream media must adhere to. Cyberspace is not a mythical universe where the usual rules do not apply! And unlike frenzied crowds where particular participants often cannot be identified, individual contributors to twitter-trending mass hysteria can be tracked down and brought to book if what they’ve said carries legal culpability. Yes, we’re human, mistakes happen, sometimes we get it wrong. But just like in the tangible three-dimensional universe, those that make blunders in the twitter-sphere, can be made to pay for them; with real-world money. Ask the BBC, ITV, comedian Alan Davies, writer George Monbiot and wife of the Speaker of the House of Commons, Sally Bercow, who between them paid out almost £400 000 in damages to Lord McAlpine for their defamatory tweets about him. Later, his legal counsel, Andrew Reid, stated, “Twitter is not just a closed coffee shop among friends. It goes out to hundreds of thousands of people and you must take responsibility for it. It is not a place where you can gossip and say things with impunity, and we demonstrated that.”
Indeed, a coffee shop it certainly isn’t, and Twitter’s value as a media tool in the rapid dissemination and acquisition of information, is not in dispute here. All tools can however be extremely hazardous if incorrectly used; and in the case of Twitter, the legal implications are profound. As somewhat of a socialist, I vehemently disagree with Lord McAlpine’s Thatcherite political stances, But in his legal response to being falsely accused of paedophilia on Twitter, I wholeheartedly supported and applauded him! They may have taken a fatal toll on him, but closely watching his court battles, is some of the best fun I’ve had in years. I love telling this story! And best you heed its warning.
The date: November 2012.
The context: A Britain reeling at the fall of an icon. An ITV documentary, seen by almost 2.5 million viewers, revealed that the recently deceased Jimmy Saville – legendary BBC presenter for over 50 years and patron of various children’s charities – had sexually molested several minors. This was followed by leaked information that rumours of Saville’s sexual misconduct had floated around the BBC since the 70’s without any action being taken; and that a BBC Newsnight expose of Saville, to be televised soon after his death, had secretly been shelved.
The mood: A public and media hyper-awareness of child molestation by high profile individuals; and its potential cover-up by supposedly esteemed institutions.
The players: A BBC now eager to prove that it would give no quarter to anyone, regardless of how famous or connected they were; an ITV feeling quite balshy after being the channel to ‘out’ Saville’s sordid past and a Twitter that through the smartphone revolution was well and truly booming.
The focal point: One Steve Messham, who in a BBC Newsnight programme on child abuse in British orphanages, said that one of his abusers years ago was “a leading Tory politician of the Thatcher era”.
Understandably, the BBC was on a “we’re not complicit, we’ll expose it” bender after the Saville debacle, hence the Newsnight child abuse focus; but it didn’t go as far as naming Messham’s molesting politician. Of course, the internet went wild with speculation as to his identity. Eventually, somewhere, somehow, out of this speculative cyber-soup emerged the name Alistair McAlpine. It began being bandied about on the Net, and to be tweeted and retweeted so often – both by ‘normal’ citizens and high profile individuals – that that it started to trend. Both the BBC and ITV picked up on it. Racing to pip each other to the post, up it went onto their web-sites. They’re both part of the ‘always on, constantly updated, if you’re not first you’re nowhere’ corporatized, cyberspaced, modern media industry; and after ‘Savillegate’ they each had particular points to prove. So they put Lord McAlpine’s face on TV.
This is my favourite part of the story.
What do you think Steve Messham said when he saw McAlpine’s picture? Go on. Close your eyes, take a guess.
“Err; that’s not him.”
By this time, Lord McAlpine was devastated. The entire affair, as his legal counsel later described it, caused him “immeasurable distress which cannot be rectified”. He sued both the BBC and ITV for libel, (the name for defamation in Britain), and received £185 000 pounds in damages from the one and £125 000 from the other; which he promptly donated to “Children In Need” and other charities. But here’s the kicker: The good lord had the time, the money and the wherewithal to put together a legal and technical team that threatened to track down every single person who tweeted or retweeted his name, and issue summons. Eventually, those with 500 followers or less were told to donate to “Children In Need” and issue an apology. Those with large followings however, didn’t get off so easily.
Cue in Sally Bercow.
Sally Bercow is the wife of the Speaker of the House of Commons. By her own admission, she prides herself in being mischievous, with tongue-in cheek humour and devil may dare spunky abandon, which has garnered her over 50 000 followers on Twitter. At the height of the McAlpine twitter-trend furore, she tweeted “Why is Lord McAlpine trending? *innocent face*“
In the case of libel against her, her barrister argued that she really didn’t mean to defame Lord McAlpine. That *innocent face* was similar to a director’s instruction to an actor in a screenplay; denoting genuine bewilderment. In his judgement, Justice Tugendhat clearly didn’t buy that interpretation. Neither do I. As a wife of a leading political figure, she’d have to be on a mission to Mars not to know why McAlpine was trending. The judge developed the argument further however, taking twitter lingo into account and stating that, “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.” He then concluded that the clear sarcasm in her tweet implied that she thought McAlpine was a paedophile and that she didn’t have to state this outright for her tweet to be considered libellous. Counsel for the plaintiff later told the press that the judgement “highlights how established legal principles apply to social media, and how the courts take account of the particular way in which social media operates when reaching decisions on whether publications are defamatory.”
It was a huge decision, because it applied online lingua franca in examining the notion of implied innuendo, without the need for statements to be plainly and directly defamatory. The legal precedent it creates, and the principle behind it, are very simple, and Mrs Bercow summed them up perfectly herself on the day the judgement came out. “Today’s ruling should be seen as a warning to all social media users. Things can be held to be seriously defamatory, even when you do not intend them to be defamatory and do not make any express accusation. On this, I have learned my own lesson the hard way.” Hard for her, hilarious for others. Many Twitter users tweeted: “Why is Sally Bercow trending? *libel face*” on the day of her hearing. But the implications of this court decision for users of Twitter aren’t funny at all. And while it was made in Britain, its core tenets will certainly apply to the South African juristic system too.
South African law is very clear. A statement that damages the public reputation of the person about whom it is made, constitutes defamation. This includes any implications of dishonesty, criminality, or sexual, political or commercial misconduct. At the same time, a statement that reveals the private information of another, amounts to invasion of privacy. The rights to privacy and dignity, (ergo a sound reputation), are both enshrined in our Constitution. Freedom of speech is also a constitutionally entrenched right; and in the clash of two competing rights such as freedom of speech and right to reputation, truth and public interest will prevail. The foremost defence available here is the combined defence of truth and public interest. That the statement is fundamentally – if nor precisely – true AND and that it was in the public interest to make it. The courts also draw clear distinctions between genuine public interest, and what is merely of salacious interest to the public. Another defence is making fair comment or expressing heartfelt opinion, based on facts. Untrue or not in the public interest; or opinion that is unsubstantiated by fact, will not stand in court. A further defence is qualified privilege – reporting what was said in parliament or court. For example, you can’t be sued for defamation when reporting that a witness stated that the accused was a rapist. Court reporting however, operates within certain legal parameters, which experienced court reporters understand. Joe Public doesn’t. In Britain for example, those who tweeted images of an alleged child killer are currently facing charges of contempt of court.
Ultimately, tweets are small strange things. Teeny written sound-bites, without the available word-count to substantiate a particular opinion, comment or statement. They allow for no deeper nuance or factual clarification – open both to personal interpretation and catastrophic misinterpretation. No one had any idea, and still doesn’t, why Lord McAlpine’s name came up, how this conclusion was reached, or what facts had been examined before the assumption was made. There was no reasoned argument, no supporting evidence, no explained investigative process. And the danger such a calamity highlights, is of a mainstream media that should follow due process and adhere to clear journalistic standards, getting caught up in, and caught out by, a Twitter frenzy.
Twitter is a tool. Journalism is a practice. Unfortunately, in the Lord McAlpine fiasco, the twitter-hammer told the media-carpenter where to drive the nail, and a lot of fingers got whacked unnecessarily. For all his legal victories, the harm done to Lord McAlpine was irreparable. In his obituary tribute in the “Mail Online”, journalist and friend of McAlpine, Simon Heffer, wrote, “He had promised me an interview for the Mail once all the court cases were settled: it never happened, because he simply was not well enough, finally broken down by the cruel strain of being a victim of this terrible lie.”
The ramifications of one’s tweets go beyond the threat of paying out legal damages. Sometimes there is real potential of permanent harm to someone else. So I write this piece less as a warning and more as an imploration. As much as a media law specialist as a media ethicist. Be warned. At the same time be both sensible and sensitive. People can get badly hurt, even in a coffee shop.
Strato is a freelance writer and media consultant, He combines his BA.LLB with a decade and a half of experience in the media industry, to now work as a media consultant and public speaker on media law. Strato lectured Media Law & Ethics at the Rhodes School of Journalism & Media Studies and the Sol Plaatje Institute, has been published in the RJR, and has written several newspaper articles on media law in South Africa, most recently as it applies to the Oscar Pistorius case.