In November 2012, BBC’s Newsnight broadcasted a report that included a serious allegation of child abuse against a "leading conservative politician from the Thatcher years". A number of other media reports insinuated similar allegations that a senior political figure was a paedophile. The politician, however, was not named and the various broadcasters all held that there was not enough evidence to reveal who this person was.

The politician was subsequently named by a Twitter user, Sally Bercow, as Lord Alistair McAlpine, a retired British businessman and politician who was an advisor to prime minister Margaret Thatcher; resulting in a defamation claim.

A tweet posted by Sally Bercow, wife of the speaker of the UK's House of Commons, soon after the Newsnight broadcast stated: "Why is Lord McAlpine trending? *innocent face*." Many other tweets following this one referred to Lord McAlpine and linked him to the Newsnight allegations.

Lord McAlpine then claimed damages for libel (defamation) on the basis that Bercow’s tweet was defamatory. The judge established that words may be understood to convey a defamatory meaning, in whatever form they are used, even if it consists of a rhetorical question.

As a matter of law, words are defamatory if they refer to the claimant and if they substantially and adversely affect the attitude of other people towards that person. The judge held that the tweet could not be read in isolation, and thus he could not accept Bercow’s argument that it was entirely neutral.

The judge reasoned that Bercow’s followers on Twitter, who would have read her tweet, most likely consisted of a large sector of individuals that share her interest in politics and current affairs. As a result, they would have been aware of the Newsnight story, which would have given them insight into her comment. The Court also held that even if the readers did not have this prior knowledge, Bercow identified Lord McAlpine by title.

Defamation, the Court held, is based on the reasonable reader. The emoticon of an innocent face would be interpreted by a reasonable reader as being insincere and ironic. It was accordingly held that there was no sensible reason to include those words in the tweet if they were purely meant to be neutral.

Bercow’s tweet essentially put a name to the media allegations of the unknown paedophile and inferred that McAlpine was guilty of sexually abusing boys. Due to the “repetition rule”, Bercow was treated as if she had made the original allegations herself, by providing McAlpine’s name. The Court held that her allegation was seriously damaging to Lord McAlpine's reputation.

This case is yet another in the growing collection of defamation claims that have arisen in recent years over material published on social media. It introduces an important precedent to the growing body of law in this area, i.e. that a comment posted on a social media site must be read in the context of other information that is available to the public at large.

The ruling also reaffirmed the common law principle, which is also applicable in South Africa, that words can be defamatory even if they only contain a defamatory innuendo. Viewed in isolation, Bercow's tweet was not necessarily defamatory. However, when considered in the context of the allegations made on Newsnight, the meaning and effect of the statements was no longer innocuous.

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