It has the makings of a pub quiz question: What do Sally Bercow, Nick Griffin, Lalit Modi, George Monbiot and Rupert Murdoch have in common? (And please don’t answer this question by way of Twitter). For the purposes of this article, they are some recent examples of those finding themselves in legal trouble on Twitter. They are unlikely to be the last.
Of those listed above Bercow and Monbiot are the most spectacular recent examples of libel by Twitter. Both have apologised to Lord McAlpine for their Tweets which identified him by name as the man at the centre of the paedophile rumours following the BBC Newsnight programme, in which he was not named. McAlpine has issued a public statement and has made it clear that he is seeking redress.
What about Rupert Murdoch? Murdoch followed his Tweet calling the “celebrities” who addressed the Prime Minister on the issue of newspaper regulation “scumbags” with a direct attack on Hugh Grant, arguing in a curious defence of his journalists that they were in some way superior to Mr Grant because they did not “abandon love child’s” [sic]. Once it was pointed out to him that this allegation was false and defamatory, he used Twitter to apologise. As a newspaper man one would have thought that Murdoch would have known to check his facts. So too Monbiot, a prominent campaigning journalist. But are the rules on Twitter different such that even those involved in print journalism should not have to check their facts when using this form of media? Should the law apply equally to Twitter as the Times?
The first and currently only recent example of a Tweet being sued upon is the case of Cairns v Modi ( EWHC 756 (QB)). Cairns achieved (at a trial by Judge alone) a substantial figure of £90,000 for damages and aggravated damages in respect of Modi’s Tweet alleging that Cairns was guilty of match-fixing. The Judge looked carefully at the extent of the dissemination of the allegation and although the original tweet may have had no more than 65 recipients he remained entitled to substantial damages. The trial judge, Mr Justice Bean, quoted from the 1935 case Ley v Hamilton (153 LT 384 cited by Lord Reid in Broome v Cassell  AC 1027 at 1092G):
“It is precisely because the “real” damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach”.
Bean J added, so as to bring these pre-internet cases into the present day:
“This remains true in the 21st century, except that nowadays the poison tends to spread far more rapidly”.
This substantial award of damages was endorsed unanimously by the Court of Appeal ( EWCA Civ 1382). The Judgment addressed specifically the unique threat of internet dissemination (paragraph 27):
“we recognise that as a consequence of modern technology and communication systems any such stories have a capacity to “go viral” more widely and more quickly than ever before. Indeed it is obvious that today, with the ready availability of the world wide web and of social networking sites, the scale of this problem has been immeasurably enhanced, especially for libel claimants who are already, for whatever reason, in the public eye. In our judgment, in agreement with the judge, this percolation phenomenon is a legitimate factor to be taken into account in assessment of damages.”
So, in terms of libel: there is no doubt that users of Twitter should understand that they will be liable for what they publish and potentially have to pay a claimant significant sums due to the “percolation phenomenon”, sums that newspapers may be able to swallow but private individuals (Modi and Murdoch aside) may not. Both Monbiot and Bercow have substantial followings on Twitter (55,000 and 56,000 respectively) and both could face having to pay substantial damages to Lord McAlpine should he wish to hold them to account. Whilst their Tweets alone may not have made the direct allegation, they will be read in context (and in particular the context of the BBC broadcast) and an allegation of paedophilia, as Boris Johnson has pointed out, is the most serious libel one can imagine. The fact that others were doing so will be no defence. McAlpine’s solicitor has urged other offenders to come forward. Should they not do so, and should their Twitter accounts not reveal their identities, Lord McAlpline will be faced with the additional hurdle of compelling Twitter to reveal users IP addresses and then very likely face further technical and jurisdictional challenges. I suspect he will pick his battles and only pursue the worst and most prominent offenders.
It is well known that injunctions in libel are nigh on impossible (Bonnard v Perryman  2 Ch 269 at 284). In privacy an injunction is the primary and only truly effective weapon. It is here that the law finds Twitter more difficult. The infamous case of CTB v News Group Newspapers (2011 EWHC 1232 QB) was the most high profile casualty of the Twitter backlash to privacy injunctions. The Court’s interim injunction was made futile by a Twitter campaign to name the footballer. Other privacy injunctions suffered similar fates in a frenzy not dissimilar to the recent naming of alleged paedophiles. Whilst Twitter was full of false stories of public figures having sought injunctions, inevitably some were accurate and laid to waste the delicate right to privacy upheld by a judge having examined all the facts. Twitter users needed no such detail, just 140 characters and a click of a mouse. What can the Court do when an injunction is impossible? Perhaps judges in privacy cases should follow libel’s lead and award substantial damages, if only to serve as a deterrent?
The criminal law can also apply. Nick Griffin, the leader of the BNP, sought to invade the privacy, and arguably the personal safety of Michael Black and John Morgan, the homosexual couple who had just succeeded in their claim enforcing their rights against Christian B&B owner Susan Wilkinson. Griffin published the home address of Black and Morgan to his dubious followers with the threat that the “British Justice Team” (by this he was not referring to members of the judiciary) should visit them for a “bit of drama”. In this case, the police became involved and the account was suspended with recourse to the Malicious Communications Act 1988 which makes it an offense to disseminate material which is “indecent or grossly offensive, or which conveys a threat … [where] there is an intent to cause distress or anxiety to the recipient”. I do not know whether the police are pursuing a prosecution under this act which could lead to Mr Griffin facing 6 months imprisonment and/or a fine of up to £5000. Messrs Morgan and Black would also have a good claim against Mr Griffin for breach of their Article 8 privacy rights even if it is a bit late for an interim injunction. The use of the Malicious Communications Act and criminal sanctions for offensive behaviour on social media sites has angered free speech groups (although Nick Griffin received no such sympathy). Most recently the arrest of a young man who posted an image of a burning poppy was understandably widely ridiculed but clearly the criminal law can and should apply to those who go to the extremes of malicious, threatening or offensive postings on Twitter or elsewhere.
So how can this conduct be prevented in the future, for everyone’s benefit? Neither Twitter nor its users wish to unwittingly find themselves in trouble in defamation, privacy or, worse still, for having committed a criminal offense. High profile casualties such as those identified above may help educate others as to the risks of publication. In the eyes of the law a defamation in Twitter is no less serious than a defamation in a newspaper with the internet “percolation phenomenon” an additional factor to be assessed when considering damages. Likewise Twitter itself must have to become increasingly agile and vigilant in removing actionable Tweets before they cause the type of damage suffered by Lord McAlpine. Whilst no UK claimant has yet held Twitter to be liable, its executives will know that there may be circumstances where it could be. Twitter is understood to have 500 million users and with this success must come additional responsibilities to both its users and those who are the unwitting subjects of their Tweets.
In a press conference last year to present the findings of the committee on super-injunctions the Lord Chief Justice, Lord Judge, stressed that we would “have to find ways.. to prevent the misuse of modern technology”. How many Writs and victims will it take before a new way is found?