Once upon a time, public discourse used to be decided by the lofty gatekeepers of culture: journalists, editors, politicians and celebrities. But these days, anybody with an internet connection – from a well-known celebrity to an anonymous troll – can very easily vent their opinion to millions.
This unprecedented freedom brings risks. Say the wrong thing on social media, and you might find yourself paying an eye-watering amount in libel damages.
What is libel?
Libel is a kind of defamation, which is the broader term for false statements that cause ‘serious harm’ to the reputation of individuals or organisations.
The two forms of defamation are:
- Slander: The statement is spoken out loud and therefore transient in nature.
- Libel: The statement is made in a potentially permanent way, such as in print or on social media.
Is libel illegal?
Libel isn’t a criminal offence in the UK, but it is considered a civil wrong which means legal action can be taken against you for making a defamatory statement. There is a time limit, however. Any claim must be brought within one year of the publication of the statement, and this applies to, say, Tweets and Facebook posts as well as print publications.
How specific must a statement be to be considered libel?
A libellous statement has to identify the target, but this doesn’t mean the target has to be mentioned by name. It can count as libel if the target is reasonably identifiable, or indeed if the libel itself is implied rather than stated outright. The upshot is that a heavy hint, even one written in a tongue-in-cheek manner, can absolutely land you in trouble.
One prominent person who was punished for making a ‘hint’ online was Sally Bercow, wife of former Speaker of the House of Commons John Bercow. The incident came in the wake of a now-notorious Newsnight episode of 2012 which aired child sex abuse allegations against an unnamed senior Conservative figure.
The episode exacerbated incorrect rumours that the figure in question was prominent businessman and former Conservative Party treasurer Lord McAlpine. A social media storm followed, and the entirely innocent McAlpine said he would pursue defamation claims against any high-profile Twitter users who’d helped propagate these false rumours.
One such user was Sally Bercow, who’d tweeted ‘Why is Lord McAlpine trending? *innocent face*’. Bercow later insisted that she had been ‘mischievous’ rather than libellous, telling the Evening Standard newspaper that, ‘I made absolutely no allegation about Lord McAlpine in my tweet, albeit I noted that his name was trending on Twitter’.
The case went to court, where the judge took a deep dive into the phrase ‘*innocent face*’ and whether or not it was intended ironically. The judge determined that ‘There is no sensible reason for including those words in the tweet if they are to be taken as meaning that the defendant simply wants to know the answer to a factual question.’
He concluded the tweet was indeed ‘an allegation of guilt’ and therefore defamatory, and Bercow was forced to pay an undisclosed amount in damages to McAlpine.
What are the possible defences for libel?
There are a few defences that someone accused of libel can make. Two of the most prominent are:
- Truth – if you can prove your allegedly defamatory statement is substantially true, the lawsuit against you will fail. It’s important to note that the burden of proof is on you, the defendant, to prove what you said was true. The person bringing the lawsuit against you doesn’t have to prove your statement was untrue.
- Honest opinion – you can defend yourself by arguing that the statement was an expression of an opinion, that your statement indicated the reason for that opinion, and that this opinion could have been held by any honest person on the basis of the known facts at that time.
Defendants have sometimes tried to argue that their offending statement did not cause enough reputational harm to actually qualify as defamatory. The controversial pundit Katie Hopkins put forward this defence in 2017 when she was accused of libel by the social activist and food writer Jack Monroe.
The dispute stemmed from the media fallout over a 2015 anti-austerity protest where sweary graffiti was sprayed on a London war memorial. Mistaking Jack Monroe for Laurie Penny, a journalist who’d tweeted saying they didn’t have a problem with the graffiti, Hopkins tweeted at Monroe, ‘Scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom.’
Monroe angrily replied on Twitter saying, ‘I have NEVER “scrawled on a memorial”. Brother in the RAF. Dad was a Para in the Falklands.’ Monroe later tweeted asking Hopkins to apologise and donate £5,000 to a migrant rescue charity or face legal action.
They did indeed face off in court, with Monroe’s team emphasising that the implication that Monroe approved of the vandalism had caused reputational harm. They also submitted that Monroe had been subjected to numerous abusive comments from Hopkins’ followers as a result of the pundit’s confusion.
Hopkins’ team meanwhile maintained that the whole incident was a trivial misunderstanding and that no serious harm to Monroe’s reputation had occurred. The judge disagreed, saying that the tweets did indeed pass the threshold of being defamatory, and ordered Hopkins to pay £24,000 in damages along with much more in legal fees.
The judge also rejected the suggestion by Hopkins’ team that Twitter is the ‘Wild West’ of discourse where comments don’t have to be ‘well-reasoned’ or ‘well-legalled’. This case is therefore a bit of a legal milestone in the age of social media, starkly confirming that comments made on Twitter and other platforms are every bit as vulnerable to defamation suits as those printed in traditional publications.
