Saturday, 22 February 2014

Defamation Act and Louise Mensch comments suggest McAlpine/Bercow Twitter law isn't final

Sally Bercow "learned the hard way" that a single impertinent and nervy tweet is no defense against serious libel charges.  Mr Justice Tugendhat delivered judgment in the case and made precedent to which we are all bound. Twitter may have made publishing vastly easier, but it has not made it responsibility free.

However since the coming into force of the Defamation Act 2013 in England and Wales on January 1 2014, tweets will be required to meet the higher thresholds laid out in the new legislation. How judges interpret the new legislation means that the law will continue to develop. But in the mean time, the McAlpine precedent rests. Media Law NI covered the McAlpine-Bercow case extensively here.

A communication made on Twitter is potentially libellous in England and Wales if it damages someone's reputation "in the estimation of right thinking members of society". It can do this by exposing them to "hatred, ridicule or contempt". This applies also to re-tweets.

So whilst UK Twitter libel law has been set, it is not fixed. Expected standards of online behaviour may be loosened and be mitigated by future judicial activism.

However in the US, Twitter libel has yet to materialise. The first libel case came to a US court here, where Courtney Love was accused with sending a libellous tweet to her former attorney. As we since know, and as we reported here, all charges were dropped.

On a US-UK perspective, a clear cleavage has emerged. America will take a more liberal stance on communications made online (in keeping with the First Amendment that holds that no persons right to free speech should be abridged). Looking at the UK again, what Louise Mensch suggests, is that the action and damages brought against Sally Bercow by the successful claimant, Lord McAlpine, and presiding judge, Lord Justice Tugendhat, were overzealous.

It reveals the unsettled nature of the issue and indeed, reminds us of the open avenue for judicial walk-back in the future. Media Law NI coverage of the McAlpine-Bercow case here. The BBC's guide to the law for Twitter users here.

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