Innocent face

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This is the allegedly libelous remark on Twitter that might cost Sally Bercow tens of thousands in damages:

Why is Lord McAlpine trending? *Innocent face*

How (you might ask) could it possibly be libelous simply to ask a question about why Lord McAlpine, after twenty years of living in retirement, was suddenly a hot topic on Twitter?

Well, McAlpine was being tweeted about in an unpleasant context. There were rumors about a famous person facing allegations of child sexual abuse. A man thought he remembered being sexually interfered with while he was a child living in a children's home, and had come to believe that his abuser from many years before was Lord McAlpine. A BBC TV program uncovered this, and mentioned "a senior Conservative" (McAlpine once served in Margaret Thatcher's cabinet) without releasing the name. The name got out anyway, and rumors started to spread on Twitter. But on being shown a photo of Lord McAlpine, the accuser immediately realized he had been mistaken about his abuser's identity.

As for the point about merely asking a question, under the British case law governing defamation it is well established a question can convey a statement by implication. You do not have to assert a defamatory claim: an implicature will do just fine to put you at risk of being found liable for huge damages.

Sally Bercow, who is the high-profile wife of the speaker of the UK House of Commons, could be in deep trouble. You can read here about the efforts of her defense attorney to claim that it was just an innocent question, and that *innocent face* was some kind of mood indicator meaning that she was sincere and didn't know the answer. The plaintiff in the case, Lord McAlpine, thinks the appended phrase was clearly a wink-wink nudge-nudge tipoff implicating that the growing Twitter rumors should be believed. Although he has dropped similar cases against Twitter users with few readers, he is not prepared to drop this one, because Sally Bercow has tens of thousands of followers, and was a major player in getting the rumors about him spread to millions.

Good luck with the innocent-face defense, Sally; but take your checkbook to court, you may need it.

[Update, May 24: Sally Bercow's defense has not prevailed. Mr Justice Tugendhat has ruled that her tweet was defamatory. Damages have yet to be decided. —GKP]

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