Tuesday, November 13, 2012

Beware of 'Twibel' Law

One of the many potential fall outs from the now infamous Newsnight broadcast on 2nd November may have major implications for users of Twitter. We now know that the broadcast carried mistaken claims by a former care home resident that he had been sexually abused by a prominent Conservative politician.

Following the broadcast, there was much speculation as to who that politician was. Some of this discussion was via Twitter, with a large number of individuals linking Lord McAlpine to the Newsnight report – which in turn caused his name to appear as a "trending topic" on Twitter alongside that of Newsnight itself.

Following clarification that this was mistaken identity, recent media reports suggest that Lord McAlpine may now be considering suing some of those for libel and if he proceeds it may represent a significant landmark in the development of what has been coined ‘Twibel’ Law.

In recent months and following some high profile cases there has been increasing clarity around the legal position of Twitter posts which everyone would do well to be mindful off. When you post content online, be it Twitter, Facebook, Blogs or even on the many comment sections of online news pages, you are responsible for that content. In effect when you post online, the law suggests you are acting as a publisher and those publications are subject to the same laws as other publishers, such as newspapers. Importantly, retweet’s also amount to a further publication and makes the retweeter responsible. In case you’re wondering ignorance of the law is not a reasonable defence.

In addition, the individual who originally tweeted the defamatory tweet is also likely to be held responsible for any retweets, as in publishing it in the first instance they may reasonably expect others to retweet it. Neither is it a defence for retweeters to say they were simply repeating a statement made by someone else even if they do so verbatim. Just because something is already circulating out there does not make fair game and the more retweets received the more damage it can do and hence the greater and more costly the libel action it may then trigger. As the law currently stands, libel is actionable without proof of damage and so, on the face of it, you can even get sued if you tweet something defamatory and don’t have any Twitter followers. That sad fact may just lessen the perceived damage done.

If Lord McAlpine does sue (and let’s face it, unlike many others he may well have the wherewithal and necessary support to do so), this high profile case will join the increasing number facing the courts.

In England’s first libel case involving Twitter in March of this year, New Zealand cricketer Chris Cairns was awarded £90,000 in damages after he was wrongly accused of match-fixing by Lalit Modi, the former chairman of the Indian Premier League. Modi was also ordered to pay Mr Cairns' £400,000 legal costs ! Lawyer and defamation expert Niri Shan, said at the time: "'This case demonstrates that posts on Twitter are taken as seriously, in the eyes of the law, as comments printed in mainstream press. Whilst people may feel less cautious about tweeting- the level of risk they are taking, and protection of those being referred to, remains the same.”

It would seem that with total costs amounting to over £1 Million in that case, we should all be a little more careful with the next ‘140 characters or less’ message we tweet or retweet– at the full 140 characters that equates to £7,142.85+ per character – ouch !

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