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Dawn of the Twibel – how safe is it to tweet?

It remains to be seen how many individuals Lord McAlpine will pursue for tweets falsely linking him to allegations of child abuse. Press reports suggest that he may seek damages from 20 high profile tweeters. However, his lawyers RMPI solicitors have indicated that they have a list of up to 10,000 Twitter users ('tweeters'), who 'tweeted' or 're-tweeted' potentially defamatory statements - including 'tweets' which have been deleted. RMPI's website invites tweeters with less than 500 followers to identify themselves and complete a questionnaire; they will then be invited to make a donation to charity and to pay a small administrative charge. The amount being sought is not yet known. Presumably, if an individual agrees to pay the sum sought their twitter user name will be crossed off the records RMPI hold and they will be eliminated as a potential defendant.

The Lord McAlpine 'twibel' saga raises the possibility of some intriguing litigation: numerous defendants being sued over the same, or similar, tweet. This is against the backdrop of Lord McAlpine having already received a total of £310,000 in damages from the BBC and ITV, which begs the question at what point will his reputation be deemed to have been fully restored?  However, whilst the case is fascinating to defamation lawyers, the prospect of legal action against the common man en masse is undoubtedly a matter of concern for tweeters who will now be thinking very carefully about what they say or retweet.

For the uninitiated, Twitter is an American website/online platform. It is listed as one of the top ten most visited websites in the world. It was established in 2006 and, like Google and Facebook, it is rapidly becoming omnipresent.  Twitter does not itself create any content, rather it provides a mechanism for the whole world (it has half a billion users and counting) to share their news, gossip, comments, and thoughts. These streams of consciousness are called 'tweets' and can contain up to 140 characters of text. 340 million tweets are generated every day. Tweets can be read by anyone 'following' the tweeter. Tweeters choose who they follow; they may follow a mixture of celebrities, football clubs, journalists, companies and friends. Tweeters who like a 'tweet' can 're-tweet' it. This means it will appear on their followers' feeds.  some of their followers may in turn retweet it again.  If a subject matter is generating a number of tweets it may be listed as 'trending' - and featured prominently on the Twitter homepage/app. Tweets also show up on searches for any particular keyword, of which 1.6 billion are conducted every day. Thus, hot gossip snowballs very quickly. When a story breaks over Twitter it is known as a 'twitter storm'.

Twitter is a great leveler, allowing multinationals, celebrities, and the rest of us to communicate on the same platform. An account can be set up in minutes, with no IT knowledge required. Twitter allows relevant news and useful information to be communicated to people who want to hear it within minutes. However, it is a double-edged sword. A twitter storm can also ruin lives by irreversibly spreading false and defamatory material or private information to every corner of the world within moments. For challenging this kind of 'trial by twitter' Lord McAlpine should be applauded.

To date there has been precious little litigation involving Twitter in England and Wales, with only one libel trial based on a tweet. In Cairns v Modi [2012] EWHC 756 (QB) the High Court awarded former cricketer Chris Cairns £90,000 for a defamatory tweet that had been published to 65 people (see our previous article here). The Court of Appeal upheld the award. There have been calls by some commentators to treat Twitter differently, but it is difficult to see how this could be justified. The damage done to a reputation by a tweet can be significant, often greater than more traditional forms of publication. To use the analogy of the Court, the 'poison' can spread rapidly to all quarters.

so what does your common or garden tweeter need to think about before tweeting? The correct answer is the law of libel. If he/she is going to say something which is potentially offensive then they shouldn't stop there; they will also need to consider section 127 of the Communications Act 2003 and other statutes (see our previous article). Prior to tweeting, tweeters should ask themselves whether there is a risk that someone identifiable from the tweet will consider themselves defamed and sued. The tweeter must tread very carefully as libel proceedings could very easily bankrupt them. The risk of litigation is not eliminated by virtue of the subject not having megabucks, he/she might be able to find a lawyer willing to act for them on a conditional fee agreement.

The normal principles of defamation will apply to tweets. The tweet will need to be defamatory (i.e. tend to lower the reputation of the claimant) for a claim to arise; the fact a tweet is false and/or offensive is not always enough. The obvious defences a tweeter might run are 'justification' (that the statement is true), honest comment and, potentially, 'Reynolds' qualified privilege. The law relating to honest comment is complicated and beyond the scope of this article. suffice to say, an assertion of fact dressed up as opinion will not fly. 'Reynolds' qualified privilege is again complicated and is typically run by newspapers where they argue that they have acted responsibly and taken the appropriate steps to verify the accuracy of a story which is in the public interest. It is unlikely to apply to the amateur tweeter. Indeed, often a tweeter is simply repeating what they have heard/read elsewhere.

It is no defence for a tweeter to argue that they are merely repeating what they have heard elsewhere. It is not sufficient to prove the existence of a defamatory statement is true; one has to prove that the substance of the allegation itself is true. Thus, by simply retweeting, one is publishing and potentially liable. This may seem oppressive, but there is a logic to it. The cause of action in libel arises from the publication of defamatory material likely to harm an individuals reputation. By clicking retweet and bringing the article to the attention of a wider audience one is doing just that. The fact a tweeter doesn't mean to cause any harm, or even don't know they are causing harm, is no defence.

One argument which might have some mileage in certain cases is to question whether there has been any real reputational harm. Even where liability would otherwise be made out, the court has a discretion to strike out a claim where it consider it is an abuse of the court's process. There is an established line of authority on this subject which rules that libel cases can be thrown out where the claim is deemed to be trivial. In Twibel this argument may be relevant where the tweeter only had a handful of followers and the tweet wasn't re-tweeted. It may also be significant that very few Twitter users read all the tweets of their followers (indeed, if you follows a number of prolific tweeters, reading all the tweets in your stream may not be possible).

Finally, a tweeter can also consider mitigating their position by promptly apologising (perhaps publicly) and/or offering compensation. The downside of this approach is that the tweeter is effectively handing themselves in when there may have not been any real intention to pursue them through the courts. Indeed, perhaps they were not even identifiable without a court order.



Legal Disclaimer

Articles are intended as an introduction to the topic and do not constitute legal advice.