McAlpine v Bercow

The natural and ordinary meaning of a publication is determined through the eyes of a reasonable representative of its actual readership, considering the words, form and surrounding context. A question may convey a defamatory allegation by implication.

A person who identifies the subject of an accusation previously published without a name may thereby repeat the accusation. Under the repetition rule, the publisher is treated as having made the allegation and cannot reduce its gravity merely because the accusation or a denial originated elsewhere. Reportage or another public-interest defence must be pleaded if it is to answer the consequences of repetition.

A prominent Twitter user published the words, “Why is Lord McAlpine trending? *Innocent face*”, shortly after widespread reporting of allegations that an unnamed leading Conservative politician from the Thatcher years had sexually abused boys in care.

The claimant brought a libel action. As a preliminary issue, the court had to determine the Tweet’s meaning and whether it was defamatory. The defendant contended that it was a neutral question. The claimant argued that the words, read against the surrounding publicity, identified him as the unnamed abuser. No defence of truth, privilege or reportage was advanced if a defamatory meaning were found.

1. The preliminary issue was determined for the claimant. The Tweet bore the natural and ordinary defamatory meaning that the claimant was a paedophile who was guilty of sexually abusing boys living in care. The action would therefore proceed to the assessment of damages unless resolved by agreement.

2. The hypothetical reader was a reasonable representative of the defendant’s Twitter followers. Those followers were likely to include many people interested in politics and current affairs who knew the substance of the recent reports: a complainant had accused an unnamed leading Conservative politician from the Thatcher years of abuse, and the decision not to name him had caused controversy.

3. The words “innocent face” were reasonably understood as insincere and ironic. Their inclusion prevented the Tweet from being treated as a straightforward request for information. In the prevailing context, the identification of a peer who was otherwise outside the public eye supplied the last piece of the jigsaw and linked him to the unnamed accusation.

4. A question or other apparently neutral form of words may convey a defamatory inference. The governing inquiry is what the reasonable reader would understand in all the circumstances. Such a reader is neither avid for scandal nor naïve and is not required invariably to adopt the least derogatory available meaning.

5. The reports concerned an accusation by an alleged victim, rather than the existence of a police investigation. By adding the claimant’s name, the Tweet impliedly repeated that accusation. Applying the repetition rule explained in Flood v Times Newspapers Ltd [2012] UKSC 11, the defendant was treated as having made the allegation herself. The reporting of the accused person’s denial did not reduce the allegation below one of guilt, although it might be relevant to damages.

6. Reportage could avoid the consequences of the repetition rule only through an applicable defence of qualified privilege. No such defence had been pleaded. Alternatively, if the meaning depended on an innuendo, the same defamatory meaning would have been understood by readers who knew that the claimant had been a prominent Conservative politician during the Thatcher years.

not stated in the judgment.