Tweets are subject to the libel rule-book. Like graffiti, books and newspapers, they fall squarely in the definition of “written words”. However they share many of the characteristics of spoken words, covered by Libel’s sister, slander.
The distinction is important; the slander rule-book is more forgiving. An aggrieved slander claimant has to prove loss (unless, they’re a woman accused of being unchaste – thanks to the Slander of Woman Act 1981) – not so with a libel claimant. Tweets are short – 140 characters short to be precise. They are casual, spontaneous, reactionary. Like the Mayfly, they live a minute, or a day.
Yet unfortunately for the author, they will be judged by the same rules that apply to well-considered newspaper articles or books and with the same severe penalties, as Welsh Councillor Colin Elsbury or Courtney Love will testify; both of whom have this year paid out thousands of pounds to compensate for the damage caused by wayward tweets. What of the defences to libel? The bullet-proof “truth” defence will apply to facts, but twitter is the place to opine. It is the world’s largest water-cooler.
To be defendable, an opinion has to be on a matter of public interest. The courts have ruled that “public interest” does not cover a celebrity’s sex life. The definition is narrower and infinitely more sober, intended to cover opinions on political and state matters or religious affairs or art. Tweets on the mundane may not be covered.
What about the defence of responsible journalism? Lord Nicholl’s checklist of 10 criteria will be far from most tweeters’ minds who are unlikely to have “taken steps to verify the information” or “sought comment” from the target of their tweet.
Tweets from Court or the House of Commons may be privileged, but only if the journalist or enthusiast’s tweets represent a fair and accurate report of proceedings. Tweeters are encouraged not to be boring. How tempting then to tweet only the salacious elements of a court case, or to summarise events in an attention grabbing tweet, worthy of a The Sun headline, without the antidote of an article which follows beneath.
The draft Defamation Bill proposes to narrow the distinction between libel and slander by requiring all claimants to prove that a statement has caused or is likely to cause “substantial harm”, but until it is passed, in the words of Celine Dion, “Think Twice” before tweeting.