Seven expensive words on Twitter


bercCLUMSY Tweeting by a prominent member of society in the United Kingdom has resulted in a legal decision against her, a heavy financial penalty and a warning to everyone that social interaction can sometimes come at an extremely high price.

The decision by the High Court in London that a message put out by Sally Bercow, wife of the Speaker of the House of Commons, was libellous merely reinforces my longstanding view that the days of the internet and social platforms being regarded as “non-mainstream” are well and truly gone.

And, along with other legal verdicts on both sides of the Atlantic, it should set alarm bells ringing among individuals and companies who use Twitter, Facebook, et al, or are considering entering the social media space for the first time.

It is my contention that as soon as any individual or organisation sets up a website or social presence, they have entered the publishing or broadcasting business.

As such, they need to know the rules of “the game”.  This is at the nub of the trouble that Bercow and others – prominent and not so prominent – have run into.

Individuals, companies and employees who have no experience of the laws of libel, defamation, copyright infringement and contempt of court cannot, as a rule, even begin to grapple with the dos and don’ts of public communication.

Without expert assistance, they may be heading for a fall, the scale of which would probably only feature in their nightmares.

Until recently, I’ve felt as though I have been shouting into a cave, as I have attempted to persuade prospective clients of my company to be cautious about what they communicate or allow to be communicated in their name (by employees or outside agencies).

My concern comes from a lifetime in newspaper journalism which ingrained in me a professional commitment to check and double-check information in advance of publication in order to avoid exposing the publishers to legal dangers, either criminal or civil.

But now some rather expensive chickens are starting to home to roost.

The upshot of the Sally Bercow ruling – which centred on just seven words and some punctuation – means she will have to pay a substantial sum of money to Conservative Party politician Lord McAlpine, who she wrongly linked to the sexual abuse of children at a care home.

The original allegation of misconduct had been made in a TV news programme by the BBC, who later paid McAlpine £180,000 ($280,000) in damages.

Amid widespread and fevered speculation about the identity of the abuser, Bercow, who had denied libel, waded into the Twittersphere and asked: “Why is Lord McAlpine trending. *innocent face*.”

That was enough to land her in court – and leave her looking at a large bill after the court ruling.

‘A warning to all social media users’

She had previously made two offers of out-of-court compensation to McAlpine that were rejected by him. So it’s clear that the undisclosed, agreed damages were higher than she had hoped.

In a statement issued after the ruling, Bercow said she had learned her lesson “the hard way”, adding that the ruling should be seen as “a warning to all social media users” because comments could sometimes be “held to be seriously defamatory, even when you do not intend them to be defamatory and do not make any express accusation”.

In court, her legal team had argued that the phrase “innocent face” was merely an indication that the tweet should be read in a deadpan manner, comparable to stage directions or notation on a musical score.

But Lord McAlpine’s lawyer stingingly responded that only “a moron in a hurry” or an “anchorite in a sealed cave” would have been unfamiliar with the context in which the tweet was published.

Individuals can only learn from this event as best they can. However, corporate organisations using social interaction – whether that’s by way of a blog, a Twitter account or through Facebook or LinkedIn – may need to draw on expert advice to ensure that they communicate “cleanly”.

Social media is now falling under the gaze of governments, legislative bodies, regulators … and lawyers.

Its advent has been akin to that of the Industrial Revolution or rotary press. But, in the UK at least, the law has finally caught up.

Messages and updates (in words, photographs, drawings or film) on Twitter, Facebook and all the other popular platforms are regarded as published material.

Interestingly, in the McAlpine case, his lawyers urged people other than Bercow who named him on Twitter to come forward so they “can reach a settlement” – i.e pay him compensation.

Ominously, the lawyers added: “We know who you are.” They also revealed that “specialist firms” had recorded each offending post and the authors would be tracked down if necessary.

The McAlpine case involved civil law but analogous scenarios have played out in criminal courts too.

A professional football (soccer) player in Wales was convicted in court of rape but nine people named the victim on Twitter, which is illegal. They pleaded guilty to publishing material likely to lead members of the public to identify the complainant in a rape case and were ordered to pay damages to the woman.

And two men who on Facebook posted apparently up-to-date photographs of the two killers of a two-year-old boy, in violation of an injunction protecting their identities, were given suspended prison sentences.

The murderers, who were 10 years old at the time of the crime, were given new “lives” to protect them from possibly vigilante harm after the completion of their custodial sentences.

The Facebook users acted in contravention of a global ban on the publication of anything revealing the identities of Jon Venables and Robert Thompson, who were released in 2001.

The injunction prohibits the publication of any images or information claiming to identify or locate the pair – even if it is not actually them. The order also covers material published on the internet.

‘The spoken word has become
the published word’

Clive Coleman, the BBC’s legal correspondent, has said of the current social media scene: “Conversations that once would have only taken place in the street or the pub have moved online. The spoken word has become the published word.

“In short, we are all publishers now. Anything tapped into a PC or phone can rapidly go viral and cause real damage to the administration of justice.

“The internet may have seemed, at its birth, like a new unregulated frontier beyond the reach of the law. It isn’t, and anyone posting material in relation to matters concerning the justice system should be aware that between mind and keyboard lies the law.”

Already in the United States, there have been legal deals in the wake of malicious or errant social media messaging,Courtney Love most notably that involving rock star Courtney Love who, in 2011, had to pay $430,000 to settle a lawsuit brought against her by fashion designer Dawn Simorangkir, who claims she was defamed in a series of messages posted on Twitter.

In all the cases detailed here, the size of the audience who viewed the messages exacerbated the misdeed.
“Publish and be damned,” was the cry of the Duke of Wellington in 1824.

That sentiment resonates to this day, and it applies to all us publishers, large and small.

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