The news that Lord McAlpine has started legal proceedings against Sally Bercow for libel over her tweets has been greeted in some quarters by dismay. I don’t see it that way: from an academic perspective, and potentially for future tweeters in related circumstances, it could end up being good news. One of the difficulties at the moment is that we really don’t know exactly where we stand. A high profile High Court battle could help us find out – and a high profile battle it seems likely to be, with Bercow having engaged those renowned lawyers Carter-Ruck. In the law in England and Wales, it’s hard to know where you are without a proper court case: the proof of the legal pudding is very much in the eating.
What’s more, in this case, all possible outcomes have their upside. I’m not going to speculate as to how the case will go – though you might want to look at my guide to defamation on twitter, which is here. I look forward to following the case closely, if it does actually come to trial – and it is important to understand what the main possible outcomes are, and what impact each of them might have. There are three main possibilities:
- Lord McAlpine could lose;
- Lord McAlpine could win, but be awarded relatively small damages; or
- Lord McAlpine could win, and be awarded substantial damages.
If the first happens, and Lord McAlpine ends up with a legal bloody nose, many tweeters will breathe a huge sigh of relief. The chilling effect will be effectively melted, and twitter will feel a freer, more comfortable place.
If the second happens, though the result won’t be as ‘freeing’ for tweeters, it might well mean that potential claimants are less likely to pursue people for defamatory tweets. If the damages to be gained are lower, and the costs are still substantial, why bother? Just ask for an apology, or move on. Cases that are pursued would only occur in very serious circumstances, or where the defamation is very clear and very damaging – in which case it may well be entirely appropriate! Twitter does need to have some kind of responsibility…
If the third happens, the result may be pretty hideous for Bercow herself – but it is important to understand that damages in libel cases in England and Wales are no longer as high as at their peak in the 80s. The £50,000 that Lord McAlpine is reported to have asked from Bercow would be a hefty figure by recent standards, for example. Even so, from the perspective of the future, there is an upside to this – it would make it crystal clear that defamation law, insofar as it relates to the social media, is in dire need of reform.
I have argued elsewhere for this – and for the development of a ‘defence of responsible tweeting’ to provide clarity and reassurance for tweeters. This is a key moment – for the first time in many years, a new defamation bill is making its way through parliament. If we are going to change the law, this is the moment. A case like the Bercow/McAlpine case could provide the ammunition that is needed to convince parliament that a change is needed, a change that would support the developing social media community.
That’s why I am not dismayed at Lord McAlpine’s move – I can see a good way forward whichever result comes from the case. In a way, the worst thing would be if it didn’t make it to court. That is also still entirely possible. Some kind of settlement might happen, or McAlpine might even drop the case. That would leave us with more uncertainty – and uncertainty is rarely good in a legal context. I’d like to see something out in the open, something proved.