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Home | Blog | On Twitter an emoticon can turn an innocent question into defamation

Lord McAlpine v Bercow [2013] EWHC 1342 (QB)

Lord McAlpine, the claimant, was a former Conservative Party politician in the United Kingdom.

On 2 November 2012 the British Broadcasting Corporation’s current affairs programme Newsnight published a report which alleged that a “leading Conservative politician from the Thatcher years” was a paedophile who had raped a number of orphan children living at the Bryn Estyn care home in Wales in the 1970s and 1980s.

The Newsnight report did not name the politician, but over the next few days unsupported speculation that the politician concerned was Lord McAlpine began circulating on social media.

By 4 November 2012 Lord McAlpine’s name was “trending” (a “trend” is a list of names of individuals and other topics which are immediately popular on Twitter at the time). Almost all Tweets that were part of this trend named Lord McAlpine as the politician who had been accused in the Newsnight report.

These allegations against Lord McAlpine were completely false. It was a case of mistaken identity.

On 4 November 2012 the defendant published a Tweet which read:

“Why is Lord McAlpine’s name trending? *Innocent face*”

The defendant, Sally Bercow, was the wife of the Speaker of the House of Commons and a well-known public figure. She had a twitter account with over 56,000 followers – this meant that her Tweet would have been read by an audience of hundreds of Twitter users at a minimum.

LordMcAlpine’s case was that the Tweet’s words meant that he was a paedophile who was guilty of sexually abusing boys living in care.

The defendant’s case was that the question she asked in her Tweet was simply a question – that it was a question which did not suggest any reason why the claimant’s name was trending, and that it was on the whole entirely neutral.

A question may be understood to convey a defamatory meaning if the context of the question would mean that the reader could draw defamatory inferences from otherwise neutral words.

The interpretation of the Tweet came down to how the words “innocent face” were to be read.

The Court ruled that the words would have been construed by the ordinary and reasonable Twitter user as the transliteration of an emoticon (a cartoon face, often used on social media and in other electronic communication, as a symbol for different emotional expressions). The Court recognised that emoticons can be used to give further context or meaning to otherwise neutral statements.

The Court ruled that the words direct the reader to imagine that the expression on the defendant’s face is one of innocence to indicate that she does not know the answer to her question – an expression which the defendant submitted was sincere, but which the claimant submitted was meant as irony (the meaning opposite of their literal meaning).

The claimant submitted that the words “innocent face” were inserted into the Tweet in order to negate a neutral interpretation (instead to suggest some sort of wrong doing on the part of the claimant) and that a substantial number of Twitter followers of the Defendant would reasonably recognise that the claimant fitted the description of the abuser given in the Newsnight report, and that the answer to the question the defendant asked in the Tweet would be, to the reasonable reader, that the claimant was trending because he was the senior politician from the 1980s who had been identified as an abuser.

The Court ruled that the reasonable reader would understand the words “innocent face” as being insincere and ironical – there would be no sensible reason for including those words if they were to be taken as asking for an answer to a factual question.

The Court ruled that the natural and ordinary meaning of the Tweet was that the claimant was a paedophile who was guilty of sexually abusing children, and that, even if the Court was wrong about this determination, then it still bore an innuendo meaning to the same effect.

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