Twitter, twit.... writ?
20 November 2012
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As Lord McAlpine presses ahead in seeking damages from everyone who tweeted lies about him, Dominic Crossley asks how many claims will have to be issued before a way is found to prevent the misuse of modern technology?
It has the makings of a pub quiz question: What do Sally Bercow, Nick Griffin, Lalit Modi, and George Monbiot 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, having tweeted or retweeted allegations regarding Lord McAlpine. They are unlikely to be the last.
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. 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 former New Zealand cricket captain Chris 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 Cairns remained entitled to substantial damages.
This substantial award of damages was endorsed unanimously by the Court of Appeal. The judgment addressed specifically the unique threat of internet dissemination:
“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.”
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 so-called ‘percolation phenomenon’, sums that newspapers may be able to swallow but private individuals 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.
Should other offenders not come forward, and should their Twitter accounts not reveal their identities, Lord McAlpine 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. 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 was the most high profile casualty of the Twitter backlash to privacy injunctions. The court’s interim injunction in that case was made futile by a Twitter campaign to name the footballer CTB.
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, a homosexual couple who had succeeded in a claim enforcing their rights against Christian B&B owner Susan Wilkinson. Griffin published the home address of Black and Morgan, the police became involved and the account was suspended with recourse to the Malicious Communications Act.
The use of the Malicious Communications Act and criminal sanctions for offensive behaviour on social media sites has angered free speech groups.
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?
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 on 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.
While 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.
Last year 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?
Dominic Crossley is a partner at Collyer Bristow