Defamation / Reputation
Rubins v. Latvia
Closed Mixed Outcome
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The High Court of Justice ruled that a tweet asking why a specific former politician was trending, followed by the words “*innocent face*”, was defamatory. The tweet had been posted after a news report included a serious allegation of child abuse by a leading politician from past years, and there was speculation as to the identity of this unnamed politician. The plaintiff, McAlpine, claimed that the question was ironic and that the tweet implied that he was the politician identified as a child-abuser. For the defendant, Bercow, the question was neutral as it did not suggest any reason why McAlpine was trending. The Court held that there could not be a reasonable alternative meaning for the question other than pointing the finger of blame at the plaintiff. Consequently, the judge considered that the words “*innocent face*” were insincere and ironical. In this sense, it affirmed that the tweet was a repetition of the accusation made by the report, but with the addition of the name which was previously omitted; hence, the tweet meant that McAlpine was a pedophile guilty of sexual abuse. The Court was not asked to assess damages at this stage.
On November 2012, the BBC’s TV show Newsnight broadcasted a report which included a serious allegation of child abuse. The allegation was made by a man, who was abused when he was a boy living in Wales in the 1970s and 1980s. He alleged that one of his abusers was a person who was referred to in the report by expressions such as “a leading Conservative from the time”, “a senior public figure”, “a leading Conservative politician from the Thatcher years”, and “a shadowy figure of high political standing.” [par. 15] Two days after the report, the defendant, Sally Bercow, posted a Tweet which read: “Why is Lord McAlpine trending? *Innocent face*”.
Lord McAlpine, the plaintiff, was a former Deputy Chairman of the Conservative Party and a former Party Treasurer. As a result of his positions within the Conservative Party he had a significant political profile during the late 1970s and the 1980s. The defendant, Bercow, is also a public figure: she was the wife of the Speaker of the House of Commons at the time and had appeared on television on a number of occasions.
Lord McAlpine vehemently denied that he ever engaged in sexual abuse. The defendant accepted that he was innocent of any of the crimes of which the boy in Wales was the victim. Lord Mc Alpine filed a lawsuit against Bercow accusing her of defamation for the tweet she posted and asked for damages.
The main issue before the High Court of Justice Queen’s Bench Division was whether the meaning of a specific tweet could imply a defamation. The judge had to interpret, firstly, whether the content of the tweet was neutral or ironical, and, secondly, decide on the level of seriousness of the allegation and whether it amounted to defamation.
The plaintiff argued that the tweet meant that he was a pedophile, guilty of sexually abusing boys. McAlpine claimed that “the gist of the Newsnight report and the reporting of it by the media were so well known to Twitter followers generally that these facts should be treated as part of their general knowledge.” [par. 56] McAlpine argued that the reasonable explanation for the defendant inserting the words “*innocent face*” is to negate a neutral interpretation, and to hint, or nudge readers into understanding that the plaintiff did something wrong. Basically, McAlpine affirmed that the answer to the question the defendant asked in the tweet would be that he was trending because he was the politician identified as a child-abuser.
The defendant denied that her tweet meant that, or that it meant anything defamatory of the plaintiff. Bercow sustained that the question she asked was simply an honest question, and that it was entirely neutral because it did not suggest any reason why McAlpine was trending. For her, the words “innocent face” are to be read literally, and it was an expression to convey that she was asking in a neutral and straightforward manner why the plaintiff was trending. Furthermore, a reasonable reader would not understand that she was referring to the allegations in the Newsnight report or suggesting any wrongdoing. As a subsidiary argument, in the case the Court found that the tweet was defamatory, Bercow held that it did not mean that McAlpine was guilty of child abuse but something less serious: that there were grounds for investigating whether he had committed child abuse.
The Court, firstly, explained that “words are defamatory of a claimant if (1) they refer to that claimant and (2) they substantially affect in an adverse manner the attitude of other people towards the claimant, or have a tendency so to do.” [par. 36] Furthermore, the Court affirmed that under the repetition rule, “a defendant who repeats a defamatory allegation made by another is treated as if he had made the allegation himself, even if he attempts to distance himself from the allegation.” [par.44] Here, there is no dispute that the tweet referred to McAlpine because it names him explicitly; the issue is what the tweet meant, and whether it defamed him.
The Court held that a reasonable person would link the tweet to the Newsnight report and its child-abuse allegation because i) the tweet identified the plaintiff by his title, Lord McAlpine, a peer of the realm, these are generally people who have held prominent positions in public life, in many cases in politics and sit as members of the House of Lords; and ii) the question was asked in circumstances where he was not otherwise in the public eye and there was much speculation as to the identity of an unnamed politician who had been prominent some 20 years ago. For the Court, “a reasonable reader would ask him or herself what the tweet is about, if it was not pointing the finger of blame at the Claimant. And there would not be a reasonable alternative meaning that would spring to mind.” [par. 72] Consequently, the judge considered that the words “*innocent face*” were insincere and ironical.
As for the second point, this is the level of seriousness of the allegation and whether it amounted to defamation, the Court affirmed that the tweet was “a repetition of the accusation with the addition of the name which had previously been omitted.” [par. 87] Hence, the effect of the repetition rule is that Bercow, as the writer of the tweet, should be treated “as if she had made, with the addition of the Claimant’s name, the allegation in the Newsnight and other media reports which had previously been made without his name.” [par. 88] Finally, the Court concluded that “the tweet meant, in its natural and ordinary defamatory meaning, that the Claimant was a pedophile who was guilty of sexually abusing boys.” [par. 90] The judge was not asked at this stage to proceed to the assessment of damages.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Defamation is widely accepted as a limit to freedom of expression. However, there is also consensus in the sense that public personalities are more exposed to public scrutiny. The Court faced a difficult task in trying to strike a balance between a subtle but serious accusation (freedom of expression) and the rights of a Lord who was a former Deputy Chairman of the Conservative Party and a former Party Treasurer (right to privacy, intimacy, honor). While the tweet posted by Bercow did not address specifically his duties as a public servant, they did refer to actions committed during his tenure. Even though there is a risk of miscarriage of justice when there is a mistake in identifying a criminal, which could affect the reputation of a person, the judgment establishes a high threshold that could have a chilling effect when denouncing crimes committed by politicians.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time. It was the first defamation case of its kind concerning Twitter in the UK and illustrated that publishing a false statement on Twitter can lead to being sued for defamation.
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