Libel laws have existed for centuries, but the entry of a new player into the game can land unsuspecting Twitter users in legal hot water for causing reputational harm in a throwaway 140-character tweet.
Here is a look at the legal perils of libel via Twitter, informally known as “Twibel”.
When did Twibel come to the attention of the law?
Twitter libel High Court cases are not common in the UK. Cairns v Modi in 2011 was the first high profile Twitter libel case brought to trial in the UK, which resulted in Lalit Modi, former chairman and commissioner of the Indian Premier League, being sued for £90,000 for wrongly accusing New Zealand cricketer Chris Cairns of match-fixing in a tweet.
This was followed by McAlpine v Bercow in 2012, the most prominent case in the UK to date. Speaker’s wife Sally Bercow apologised for her “irresponsible use of Twitter” and paid £15,000 damages and politician Lord McAlpine’s costs, after tweeting “Why is Lord McAlpine trending? *Innocent face*”, which wrongly implicated him in allegations of child sex abuse during the 1970s and 1980s.
— Mark Stephens (@MarksLarks) March 10, 2017
Bercow denied it was defamatory. However, Justice Tugendhat concluded that the use of the phrase “innocent face” implied that McAlpine was a paedophile and “pointed the finger of blame”.
Monroe v Hopkins is the third high profile case, and the first since the introduction of the “serious harm” test introduced by the Defamation Act (2013) which requires proof that a Tweet has caused serious reputational damage, beyond being upsetting.
Other cases have been settled out of court.
What are the repercussions of Twibel?
It is not a criminal offence although there are potentially large financial costs to be incurred on both sides.
“There is an upper limit in libel of £275,000″, said lawyer Iain Wilson of Brett Wilson LLP, a firm specialising in media law. The compensation is symbolic, designed to restore the reputation of the claimant and compensate them for distress and not designed to “punish the wrongdoer”.
Legal costs can reach as much as £500,000 on both sides, with the burden on the loser to pay the winner’s costs. Twibel cases are especially unique when it comes to defendants paying out, as they may not have the resources to do so.
Are there any differences between Twibel and libel?
No. While tweets are more transient and less likely to be seen as widely, if it counts as defaming another individual, it falls under libel laws.
Does follower count matter?
Yes. According to Wilson: “The more followers you have or the more followers people who have retweeted it have, means it’s more likely that serious harm has been sustained.”
Although Twibel and libel are the same in the eyes of the law, the level of potential damage caused is dependent on the number of followers the tweet has been sent to. An important factor in the success of defamation claims is being able to establish that serious reputational harm has been done.
It"s taken 21 months
but today the High Court ruled
that Hopkins statements to/about me were defamatory.
I sued her for libel.
and I won.
— ❄Jack Monroe (@MxJackMonroe) March 10, 2017
In Monroe v Hopkins, the reach of Hopkins’s tweets was measured by working out how many of the 5.7 million visits to her page in May 2015 were made on the day she posted the first defamatory tweet, May 18.
In his judgment, Justice Warby decided that “quite clearly (Hopkins’s) followers, who number over half a million, shared the confusion you promoted”, subjecting Monroe to a “torrent of abusive and vile comment”.
In instances where few people have seen the tweet, the case could likely be thrown out as “trivial”, Wilson said.
Does a retweet count as Twibel?
Yes, and in some cases, a retweet can do more harm than the original post.
“Republishing a defamatory statement is defamatory in itself. It’s no good to say ‘I was just quoting or retweeting someone’,” says Wilson. If the person who has retweeted has more followers, and potentially more money, they become a more desirable target to sue because the potential for damage – and likelihood of a payout – is greater.
In Cairns v Modi, Wilson remarked that the original tweet was sent out to around 65 people, however it gained prominence by being retweeted and republished in an online story.
Is this an attack on free speech?
Not necessarily as the law strikes a balance through the “serious harm” test.
Although the conversational nature of social media means Twitter exchanges can be equivalent to a “chat in the pub”, according to journalist and media consultant David Banks, tweets can reach a very wide audience.
Damage does not always relate simply to how many people have seen or retweeted the post, but it also depends on if a significant number of people “within the claimant’s community have seen the post,” added Banks.
Should Twitter be doing more?
Twitter operates internationally therefore issuing warnings to users would be timely, costly and ineffectual. Banks points out that many social media users do not read the small print in the first place.
There have been very few instances of Twibel trials to deter users.
Wilson does think a “health-warning” on the sign-up page, which is not just published in small print, could be useful to users who are not familiar with media law.
Mark Stephens, a media lawyer at firm Howard Kennedy, says the issue is not with Twitter itself, but is a case of “self-censorship”.
“We all libel people every day in our gossip. But everything you say on social media is permanent and indelible.”