‘Twitter’ and Lord McAlpine

 

I have written extensively in the past regarding the law of social media and employment matters that you can have a read at here.

This time I once again find myself falling into the trap of discussing social media but this time in relation to defamation.  My main reason for writing this piece is because of the recent settlement between the BBC and Lord McAlpine.

First of all in relation to defamation it is accepted that people have the right to conduct their daily lives without having their characters besmirched or their reputation dragged through the mud by the dissemination of untrue communications.  A person’s interest in their reputation is a reparable one and therefore if that interest is harmed then damages may be rightly sought.

In addition to this, it must be added that if prior knowledge is to arise regarding such a matter then interdict may be sought to prevent any form of injurious publication or broadcast from taking place. There are other ways of remedy as not everything is classed as defamation (verbal injury) but for now we shall concentrate of the McAlpine case as I am sure there is a wealth of information on the internet discussing defamation law in Scotland and other U.K. jurisdictions.

The reason that my attention was brought to this matter was upon reading this article online earlier that states that Lord McAlpine’s lawyer; wishes to bring lawsuits against anyone and everyone that made tweets regarding his involvement in a child abuse scandal.

http://www.independent.co.uk/voices/debate/debate-george-monbiot-faces-legal-action-over-mcalpine-tweet-but-should-inaccurate-tweets-be-subject-to-libel-laws-8323540.html

I would like to suggest that this is nothing short of rubbish.

In order to obtain the information regarding those sending tweets the legal team would need to obtain and order of court to try and obtain the personal IP addresses from Twitter.

So what is the problem here? Well first of all, Twitter will be in absolutely no rush to help with these enquiries. Over in New York Twitter is currently engaged in a battle with the courts as they claim that it is the users of their service that own the rights to their tweets where on the other hand the courts say that Twitter own the individual tweets and the personal information to go along with it.

 

I am no expert on the law of New York State or that of any other U.S jurisdiction however if interested you can read the appeal of Twitter here: http://www.aclu.org/files/assets/brief-harris-appellateterm.pdf

The Short version of the appeal is that Twitter claims that they make it clear in their Terms of services that users own their own content and have a right to fight invalid government requests. https://twitter.com/tos

Twitter also appears to claim that they believe users to have a Fourth amendment privacy right to their accounts and therefore deleted tweets are not public. They also claim that Twitter accounts should fall under the same protection as personal e-mail accounts.

So, okay – U.S. law has nothing to do with Lord McAlpine but the principle remains. Twitter will be in no rush to assist Lord McAlpine’s legal team as it would completely undermine their appeal case in the U.S.A.

So no luck for Lord McAlpine.

Next in line would be the point that Lord McAlpine managed to achieve £185’000(plus costs) from the BBC. I’d suggest that was a rather large sum of money given the circumstances.

First of all, I completely appreciate that Lord McAlpine has been treated appallingly by the BBC and that he is well entitled to claim damages for the stress that his character has had to endure over the past few weeks.

Due to the nature of the claim I can understand that the BBC would have wanted to settle the matter on a swift basis but, did they perhaps pay more than was required?

I am no expert on English law on the matter of libel damages. However, I am fairly certain that the highest figure than can be awarded in the courts in in the region of £275’000. In that view then, £185’000 seems like a steal for the BBC.

The problem though is that the ceiling figure of £275’000 is the very tip of the iceberg. It is for the most extreme cases. It would certainly not have been the award for Lord McAlpine considering the BBC made a quick and full apology on the matter. Making an apology does not acquit anyone for their liability but it does act as a variance of mitigation if you like and should be taken into consideration upon award of damages. In fact, recent precedent (found here: http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/cairns-modi-kc-mgn-ltd-media-summary.pdf) would suggest that this should amount to 50%. Now, it doesn’t take a genius to work out that 50 of £275’000 is only £137’500, approx. £50’000 less than that of the BBC’s settlement. In other words a generous settlement and one that Lord McAlpine should be thanking his lawyers for.

(As a small aside I write this piece just as Children in Need is about to be broadcast, would it not perhaps be a fitting gesture for Lord McAlpine (a multi-millionaire) to donate his damages to the charity???)

We could discuss all the liability of the BBC due to the nature of the programme that never actually identified Lord McAlpine personally although it could be argued that there was a form of innuendo along the way as many of the viewers did indeed come to the conclusion that it was him. (Wrongly).

The argument I presume would be over foreseeability however that is not really the point of my piece.

The point of my piece is that due to the nature of the pay-out from the BBC, as I have suggested it as being generous to the point that it is more than any court could have awarded. Due to that it could be argued that any future claims made by Lord McAlpine against members of the public for their tweets would need to take this award from the BBC into consideration and in turn result in the awards to Lord McAlpine being so massively reduced that they would not be worth the effort or potential financial expense of court proceedings.

I am not saying that that is gospel but definitely something that is possible due to Section 12 of the Defamation Act 1952:

Evidence of other damages recovered by plaintiff.

In any action for libel or slander the defendant may give evidence in mitigation of damages that the plaintiff has recovered damages, or has brought actions for damages, for libel or slander in respect of the publication of words to the same effect as the words on which the action is founded, or has received or agreed to receive compensation in respect of any such publication.

 

 

 

 

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One Comment on “‘Twitter’ and Lord McAlpine”

  1. Loverat Says:

    “Due to that it could be argued that any future claims made by Lord McAlpine against members of the public for their tweets would need to take this award from the BBC into consideration and in turn result in the awards to Lord McAlpine being so massively reduced that they would not be worth the effort or potential financial expense of court proceedings”.

    At last – an article that actually reports the correct legal positiion and facts. The over compensation factor is crucial to this and has been addressed in English courts before and most recently too. An abuse of process is the likely outcome here.


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