It has been hard to escape news about social media recently, and with good reason - the case currently being prepared against those who falsely accused Lord McAlpine of paedophilia could have the largest number of defendants in British legal history. McAlpine’s lawyers have reportedly identified 1,000 tweets and 9,000 retweets naming the Conservative peer in connection with the BBC Newsnight programme which contained incorrect accusations of paedophilia against an un-named member of the Thatcher government. They believe that all are actionable under this country’s strict libel laws.
Writing in response to this news over the weekend, The Independent columnist Grace Dent suggested that Lord McAlpine's legal team ‘may have just changed Twitter forever’ – a sentiment that has been echoed by individual tweeters across a social network that could be on the point of moving from wild adolescence into some form of more settled adulthood.
One of the main reasons the McAlpine case is having such a big effect is that the peer’s lawyers actually seem to understand Twitter – and have used their familiarity with it to come up with a system of calculating damages that seems workable.
According to Lord McAlpine’s solicitor, Andrew Reid, the guiding principle as to how much defendants may be required to pay-out will be their Twitter follower numbers. Those with less than 500 followers will be asked to make a small donation to charity as part of a settlement, with an ‘administration fee’ also payable. However, Reid adds that higher profile figures who tweeted McAlpine’s name such as Sally Bercow, wife of the speaker of the House of Commons, Guardian columnist George Monbiot and comedian Alan Davies, are “a separate matter” and will probably be expected to pay considerably more.
Dent – a highly influential figure on Twitter herself, with a massive 147,000 followers – approves: "Reid actually sounded like he had a grip on that which he was spouting off about,” she wrote. “Like he’d actually set eyes on a Twitter homepage, or had even sent a tweet, or was at least employing bright young things who had."
This principle of more heavily penalising the most influential tweeters is also informing Director of Public Prosecutions (DPP) Keir Starmer QC’s parallel attempts to come up with new guidelines for the separate issue of criminal liability on social media, under section 127 of the 2003 Communications Act (which forbids the publishing of content of a ‘grossly offensive or of an indecent, obscene or menacing character’). A few weeks ago, Starmer suggested that it could be appropriate for tweeters with thousands of followers to face prosecution if they tweet something ‘grossly offensive’, while letting those with only a few dozen followers go unpunished. Doubtless, though, this approach won’t be trouble free, with some tricky questions to overcome first. What number of Twitter followers confers public significance upon someone, for example? And what if a person has relatively few followers, but those who do follow them are unusually influential and inclined to retweet them? Which leads on to the tricky issue of retweets: what happens when someone with few followers tweets something, and is then widely retweeted by other Twitter users who also have few followers?
It’s difficult areas like these which would require Starmer’s new guidelines to be ‘thoroughly stress-tested by people who understand social media’, argues leading media lawyer and New Statesman legal correspondent David Allen Green. Green is well known for his work successfully appealing the decision in the so called ‘Twitter joke trial’, where Paul Chambers was prosecuted for tweeting in jest about blowing up an airport. But, encouragingly, Green is optimistic that, after a few more bumps along the way, the DPP can come up with a workable solution. “It’s not beyond the wit of mankind to have good legal guidelines on social media use,” he explained recently.
Certainly, the road to this point has been far from smooth already, marked by inconsistencies and confusing signals. On one hand, libel lawyers have treated Twitter almost as a zone of permitted lawlessness, avoiding taking action against its users save for a few exceptional cases. On the other, the Crown Prosecution Service (CPS) has come down hard on anyone it deems to have breached the standard set out in section 127. This has led to some surprising decisions. For example, it’s hard to understand why a 20-year-old called Matthew Jones was sent to prison for twelve weeks (cut to six on appeal) for posting offensive and derogatory comments about missing five-year old April Jones on his Facebook page, when comedian Frankie Boyle wasn't prosecuted for a sick joke he made about missing child Madeline McCann and Jimmy Savile on Twitter (especially as Boyle’s comment has since been widely retweeted).
While not excusing this sort of inconsistency, Green argues that it needs to be viewed in the context of an environment of major social change. He likens the current situation to the time 150 years ago when people were given the right to vote, or going even further back, when they were allowed to read scripture for themselves. Any event involving a transfer of power from the establishment to individuals will provoke anxiety and lead to mistakes on both sides, he cautions.
In the meantime, we all need to accept that our new power to act as publishers comes with responsibility. ‘One day,’ tweeted Green recently, ‘tweeting without thinking will be as rare crossing a road without looking- the preserve of idiots and the reckless. But not yet’.