McAlpine v Bercow

The meanings of words for the purposes of defamation are of two kinds. There may be a natural and ordinary meaning and there may be an innuendo meaning.

In Jones v Skelton [1963] 1 WLR 1362 at 1370-1 the court explained what is meant by a natural and ordinary meaning as follows:

“The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. …. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words.”

An innuendo meaning (in the technical legal sense) is something more than a meaning that can be implied from the words complained. It is a meaning which can be implied from the words complained of, but only if the reader also knows other facts (which are not general knowledge). These are generally called extrinsic facts.

In respect of an innuendo meaning, a claimant must, in addition to identifying the meaning complained of, prove the extrinsic facts relied upon and prove that these facts were known to readers (Gatley on Libel & Slander 11^th ed. §3.19). The claimant will have been defamed in the minds of those readers, but not in the minds of the readers who did not know the extrinsic facts.

There may be an issue between the parties whether the circumstances of a publication amount to extrinsic facts, which have to be proved as such to support an innuendo, or whether they are general knowledge, which can be relied on in support of its natural and ordinary meaning. Either way, the court must find that the facts are known to the reader.

In the present case there is no dispute about the truth of the fact that the Claimant was a prominent Conservative politician from the Thatcher years. The issue is as to whether any reader of the Tweet knew who the Claimant was.

In the present case the Tweet would mean little to a reader who had no knowledge of any of the Claimant, of the Newsnight broadcast or of the media reporting of the Newsnight broadcast in the period immediately preceding the Tweet. So in the present case I have to decide whether the Newsnight report and the media reporting are to be treated as part of the general knowledge of the Defendant’s followers who read the Tweet on 4 November 2012, or whether they are to be treated as extrinsic facts, that is to say, knowledge that would be known only to a limited number of people. If they would be known only to a limited number, then the Claimant must prove that there were readers in that number, and how big that number was.

In cases where the extrinsic fact is obscure a claimant will have to adduce evidence from witnesses or documents to prove that the readers of the words complained of knew the extrinsic facts. But in other cases a claimant may rely on an inference prove that some readers had the necessary knowledge of the extrinsic facts.

In Fullam v Newcastle Chronicle & Journal Ltd [1977] 1 WLR. 651 the plaintiff complained that an article in a local newspaper meant that he had fathered an illegitimate child. But the meaning in question could only be understood by readers of the newspaper who knew facts about the plaintiff’s wife and child (the date of the marriage and the date of the birth) which were not set out in the article he complained of. At 659 Scarman LJ explained:

“There may well be cases in which it would not be necessary to plead more than the fact of publication by newspaper and the extrinsic circumstances, leaving it to be inferred that there would be readers with knowledge of the facts [about his wife and child].

For instance, the facts may be very well known in the area of the newspaper's distribution — in which event I would think it would suffice to plead merely that the plaintiff will rely on inference that some of the newspaper's readers must have been aware of the facts [about his wife and child] which are said to give rise to the innuendo.”

In the present case the Claimant’s primary case is that his having been a politician, the gist of the Newsnight report, and the reporting of it by the media, were so well known to Twitter followers generally that these facts should be treated as part of their general knowledge. If he is wrong about that, his alternative case is that he relies on inference. He submits that the court should infer that there probably were some readers who knew these facts, as explained in the Fullam case.

The legal principles to be applied when determining the question of meaning are in part derived from the Rubber Improvements case. They were summarised by Sir Anthony Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130 at [14]-[15] (where “he” means “he or she”):

“The legal principles relevant to meaning have been summarised many times and are not in dispute.... They may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any “bane and antidote” taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question.”

It is important in this case to stress point (6). The Tweet was not a publication to the world at large, such as a daily newspaper or broadcast. It was a publication on Twitter. The hypothetical reader must be taken to be a reasonable representative of users of Twitter who follow the Defendant. What the characteristics of such people might be is in part agreed, and in part for submissions by the parties as to what I should infer from what is agreed.

The Defendant’s tweets which are in the court bundle include a number which relate to politics or current affairs as well as a number which do not. Because of that, and because of her political links, Sir Edward submits that followers of the Defendant probably included a significant number who shared her interest in politics and current affairs. A significant number retweeted the Tweet to their own followers. The fact that the Defendant’s followers use Twitter implies that they like to be up to date with such matters. I did not understand Mr McCormick to dispute this, and I would infer that it is the case.

It is also common ground between the parties that, in the past, some Twitter users have used Twitter to identify alleged wrongdoers, and others whom the traditional media have not identified when reporting a story. An example of this was in 2011 when Twitter users identified a footballer who had obtained a privacy injunction in an action where he was identified in the public court papers only by initials. Although the Defendant does not dispute this, she does not admit how great a number of readers of the Tweet would have known this fact about how Twitter was used (or any of the other facts which she agrees to be facts). And she does not accept that even those readers who did know that Twitter had been used in this way in the past (or the other agreed facts) would understand the Tweet to mean what the Claimant contends it means.

There are, of course, also references in the newspaper reports I have quoted above to Twitter being used in this way in this very case. Examples are the “frenzy of unsubstantiated speculation on social networking sites, with several politicians being named as the likely subject” (paras 22 and 26 above) and the tweets of which The MailOnline published images (para 23 above).

The law is clear that words may be defamatory in whatever form they are used. A question, or a rhetorical question, or any other form of words may, in principle, be understood to convey a defamatory meaning. The meaning of a statement or question depends on the context. The extent to which a reader can draw defamatory inferences from neutral words depends on the context. The writer is not responsible for an inference unless it is one that a reasonable person would draw: Gatley para 3.17.

Although there is no dispute that the principles listed in Jeynes set out the law to be applied, there is a difference of emphasis between the parties in relation to the words in principle (2) “and someone who does not and should not, select one bad meaning where other non-defamatory meanings are available”.

There was in the early 17^th century a rule of law that words alleged to be defamatory were always to be construed in the most inoffensive sense reasonably possible (see Ajinomoto Sweeteners Europe SAS v ASDA Stores Ltd [2010] EWCA Civ 609 at para [1]). This rule was to discourage suits and prosecutions. Or as we would express it today, it was to discourage litigation which might interfere with the right of freedom of expression. But that has not been a rule of law since then, and it is not one now. Sir Edward notes that the editors of Duncan & Neill 3^rd ed para 5.15, at footnote 3, caution that a jury could be confused if those words from Jeynes were included in a direction on the law from the judge.

On the other hand, as Mr McCormick rightly submits those words from principle (2) in Jeynes were specifically approved by the Court of Appeal in Tesla Motors v BBC [2013] EWCA Civ 152 at para [19].

I interpret those words as being part of the description of the hypothetical reasonable reader, rather than as a prescription of how such a reader should attribute meanings to words complained of as defamatory. If there are two possible meanings, one less derogatory than the other, whether it is the more or the less derogatory meaning that the court should adopt is to be determined by reference to what the hypothetical reasonable reader would understand in all the circumstances. It would be unreasonable for a reader to be avid for scandal, and always to adopt a bad meaning where a non-defamatory meaning was available. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve.

Sir Edward submits that the Tweet taken just by itself, consisting of its seven words, suggests that the Claimant has done something wrong. It is not neutral, even to a reader who knew none of the events of the preceding two days. The question is followed by the words “innocent face”.

The parties differ as to what the words “innocent face” should be understood to mean in this context. Sir Edward submits that the words “innocent face” are to be read as irony, that is, as meaning the opposite of their literal meaning. People sometimes ask a question to which they already know the answer. They may do that as an indirect way of bringing out into the open something they already know, or believe to be, a fact. They sometimes seek to conceal what they are up to (or pretend to conceal what they are up to) by putting on an expression which suggests that they do not already know the answer to the question. Sir Edward submits that the reasonable explanation for the Defendant inserting the words “innocent face” in the Tweet is to negate a neutral interpretation, and to hint, or nudge readers into understanding that the Claimant has been doing wrong.

He submits that the court should infer that (by Sunday 4 November) 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 the other media referred to above. Against the backdrop of that report and those media publications, the answer to the question the Defendant asked in the Tweet would, to the reasonable reader, be that the Claimant was trending because he was the senior Tory politician from the Thatcher years who Mr Messham had identified as his abuser in the children’s home in Wales.

Sir Edward accepts that many of the Defendant’s followers were too young ever to have heard of the Claimant in the days when Margaret Thatcher was Prime Minister, and others had probably forgotten about him before he started the trending to which the Tweet referred.

Sir Edward submits that the Defendant has not suggested any reason why he should have been trending in 2012, other than because his name had been linked to the abuse allegations. So the question in the Tweet is just a device the Defendant used to draw the readers’ attention to an answer which a reasonable reader would understand that she already thought she knew.

A reasonable reader of a Tweet, or anything else, does not just look at the words. A reasonable reader would ask him or herself what the Tweet is about, if it was not pointing the finger of blame at the Claimant. And there would not be a reasonable alternative meaning that would spring to mind.

Sir Edward submits that if the circumstances in which the Tweet were published do not amount in law to general knowledge known to the Defendant’s followers, then, because they had been reported in public sources to so great an extent, the court should infer that they were probably known to a substantial number of readers of the Tweet. He submits that I should infer that the Newsnight report, and the allegations made in it, were one of the biggest domestic news stories that weekend.

So if the Tweet is not defamatory in its natural and ordinary meaning, he submits that it is defamatory in an innuendo meaning to that substantial number of readers who did know of the Newsnight report and the other media reports referred to above.

Mr McCormick submits that the words “innocent face” are to be read literally: that the expression which the reader is being invited to imagine on the Defendant’s face in asking the question is “deadpan”. It is an expression to convey that she is asking it in a neutral and straightforward manner. She has noticed that the Claimant is trending and all she is asking is that someone should tell her why.

He emphasises that the Claimant’s career, distinguished as it was, ended some 20 years ago. Newsnight is not a programme that attracts particularly large numbers of viewers. It is notable that the Claimant has been unable to include in the media reports he relies on reports on other TV programmes, or on radio broadcasts. The media reports he relies on are not front page coverage, and are not in the mass market tabloid press. The media reports to which he drew my attention, as set out above, give very little detail to describe the person accused of abusing Mr Messham.

The position as at 4 November 2012 must not be confused with the position as it became later that week, when, in a notorious incident, an interviewer could be seen on TV handing to the Prime Minister a list of names on which the Claimant’s name could be seen by viewers. The coverage after that, he submitted, could be described as blanket coverage, but not the coverage before 4 November. That is why, submits Mr McCormick, the Claimant has to rely on an innuendo meaning in this case.

Mr McCormick submits that the reasonable reader of the Tweet would not understand the Defendant to be referring to the allegations in the Newsnight report or suggesting any wrongdoing. The question was consistent with her having noticed he was trending, but not having investigated the reason. Only an unreasonable reader, avid for scandal, would read the Tweet as asking anything other than a straightforward question. If readers were to take this Tweet as meaning that the Claimant was guilty of child abuse it would be almost impossible to tweet about anything. She cannot reasonably be understood as adopting Mr Messham’s allegations. Even if she is understood to refer to those allegations at all, she is referring only to a controversy, and IS not taking sides.

Mr McCormick submits that the Defendant’s followers would know that there can be any number of reasons why a person might trend, and it is not necessary for the Defendant to suggest any particular reason why the Claimant might have been trending. That is why she asked the question.

Mr McCormick emphasises that the Claimant had not been named in the Newsnight report or the media relied on by him, and that by 2012 very few people would be likely to know or to remember what he had done some 20 years before. At best he was only one of a number of people from the Thatcher years who would have fitted the very vague description given of the alleged abuser. The Newsnight report and other media reports did not just report Mr Messham’s allegation. They also reported that the person who he identified had unequivocally denied the allegation, and that the BBC had insufficient information to name that person. Just because Twitter was sometimes used by tweeters to disclose the names of people when others were trying to keep the names out of the public eye, it would not be reasonable for a reader to infer that that was what the Defendant was doing with her Tweet.

In my judgment followers of the Defendant on Twitter probably are very largely made up of people who share her interest in politics and current affairs. They probably are people who, by 4 November, knew these elements of the story told in the Newsnight report: that Mr Messham had been abused at a children’s home in Wales some 20 years or so before, that the man he identified as his abuser was a leading Conservative politician from that time, and that the decision of the BBC not to name the person Mr Messham identified was the subject of public controversy.

In my judgment some followers of the Defendant probably did also have prior knowledge of the Claimant as a leading Conservative politician of those years. Some followers probably did remember him in that capacity, and some others probably had sufficient interest in politics to have read about him. 56,000 is a substantial number of people, although I do not find that all of those read the Tweet.

However, in my judgment it was not necessary for a reader of the Tweet to have had any prior knowledge of the Claimant as a leading politician of the Thatcher years in order for them reasonably to have linked the Tweet naming him with what I have found they knew about the allegations in the Newsnight report. This is because the Tweet identified him by his title, Lord McAlpine, that is to say, as a peer of the realm. It is common knowledge that peers nowadays are generally people who have held prominent positions in public life, in many cases in politics, including as members of the House of Lords. The Tweet asked why the named Lord was trending, in circumstances where (1) he was not otherwise in the public eye on 4 November 2012 and (2) there was much speculation as to the identity of an unnamed politician who had been prominent some 20 years ago.

In my judgment the reasonable reader would understand the words “innocent face” as being insincere and ironical. 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.

The Defendant does not have any burden of proof in the issue I have to decide. She does not have to offer an alternative explanation of why a peer, whose name and career is known to few members of the public today, might have been trending on 4 November 2012 without her knowing why he was trending. But where the Defendant is telling her followers that she does not know why he is trending, and there is no alternative explanation for why this particular peer was being named in the tweets which produce the Trend, then it is reasonable to infer that he is trending because he fits the description of the unnamed abuser. I find the reader would infer that. The reader would reasonably infer that the Defendant had provided the last piece in the jigsaw.

That leads to the question: what is the level of seriousness of the allegation that the Claimant fits the description of the unnamed abuser?

The Newsnight report was not a report of an investigation by the police (or by anyone else). Nor do the media reports suggest that they were reporting on an investigation. The Newsnight report, and all the other reports are of the allegations of a man who complained he was sexually abused. It is true that some reports also included that the unnamed person who is accused of the crime has vehemently denied it. But what is reported is the accusation. The Tweet is linked to those reports, in that it adds a name that was not in the reports themselves. So it is by implication a repetition of the accusation with the addition of the name which had previously been omitted.

The effect of the repetition rule is that the Defendant, as the writer of the Tweet, is treated as if she had made, with the addition of the Claimant’s name, the allegation in the Newsnight and other media reports which had previously been made without his name. It is an allegation of guilt. I see no room on these facts for any less serious meaning. The fact that the accused’s denial was also reported in media (other than Newsnight) may be one of a number of factors that the Defendant can rely on in mitigation of damage, but it does not reduce the seriousness of the allegation.

If the Defendant wished to avail herself of a public interest defence, such as Reynolds privilege or reportage, she would have had to plead it. She has not done so. Given the well known risk that a victim of a real crime may make a mistaken identification of the criminal, I do not find it surprising that she has not pleaded any defence of that kind.

It follows that, for these reasons, I find that the Tweet meant, in its natural and ordinary defamatory meaning, that the Claimant was a paedophile who was guilty of sexually abusing boys living in care.

If I were wrong about that, I would find that the Tweet bore an innuendo meaning to the same effect. But if it is an innuendo meaning it is one that was understood by that small number of readers who, before reading the Tweet on 4 November, either remembered, or had learnt, that the Claimant had been a prominent Conservative politician in the Thatcher years.

At this stage I am not asked to find how many followers of the Defendant read the Tweet or understood it in the meaning I have found it bore.