Talk before Dinner at the Middle Temple 20 March 2024
Edward Garnier KC
A few rather random thoughts on the excitements of social media from behind the sub-fusc gown of a very former Law Officer or, perhaps more accurately, a self-regarding wander down memory lane. May I begin by thanking Master Treasurer, Paul Darling OBE KC, for inviting me either to ruin your evening
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A few rather random thoughts on the excitements of social media from behind the sub-fusc gown of a very former Law Officer or, perhaps more accurately, a self-regarding wander down memory lane.

May I begin by thanking Master Treasurer, Paul Darling OBE KC, for inviting me either to ruin your evening by inducing a bit of pre-prandial indigestion or to whet your appetites for what I am sure will be the culinary and oenological delights of dinner in Domus? I have been a Middle Templar for 50 years having joined in my last summer at university in 1974. I applied to the Middle Temple both because some of my ancestors had been members over several centuries and, more accurately, because a group of us, fellow history undergraduates, thought we would stick together and see whether we might enjoy our first two years in London reading for the Bar at the same Inn. We were not exactly a Pals’ Battalion heading off the Western Front, but we all shared a sense of adventure, excitement, and total absence of certainty about what lay ahead - other than that we would have to survive in London with very little money for some while. I am happy to say that all of us from that little band are still alive, some of us still practising at the Bar or on the Bench, and some of us are happily retired; but all of us, I am sure, looking back from half a century later, have a rather rosy picture of the joys of Bar school and penury. My father, who was helping with my living costs, had a more realistic picture and said on my extolling the joys of self-employment in my first year as a tenant at 1 Brick Court, “It looks more like self-unemployment.”

Before I get on to talk about what I should be talking about, the intersection of social media and defamation law, let me indulge myself by saying a little more about how I got here. It may encourage you to persevere with your studies either as Bar students or in pupillage or to keep going as a new tenant in chambers - although of course there’s some chance that it may have the opposite effect or none at all. I spent 25 years as a Member of Parliament which qualifies me, indeed the default position is, to talk about myself - and when given a platform sometimes the temptation to perform to type is too much.

As I indicated, some of my forbears were Middle Templars. One of them, William de Grey, my 5 x great-grandfather, whose name and coat of arms you can see on the panels through the doors as you come into Hall, was Lord Chief Justice of the Common Pleas in the 1770s having taken Silk aged 39. Looking at the ages of those who took Silk on Monday the under-40s are still going strong. Three years later, in 1761, he became one of the two MPs for Newport in Cornwall, a pocket borough which he never visited owned by the Duke of Northumberland. That same year he was appointed Solicitor General to the Queen. In 1763 he joined the government as Solicitor General and in 1766 was appointed Attorney General. From 1763 to 1771 when he became Lord Chief, he served under 5 Prime Ministers, Grenville (a Whig), Rockingham (a Rockingham Whig), Pitt the Elder (he said he was an independent Whig but has been called a Tory), Grafton (a Whig) and North (a Tory); and for his final year in the Commons was MP for Cambridge University, his alma mater. He was Treasurer of the Middle Temple in 1766.

Prior to becoming a Law Officer, he had what I think we would nowadays call a Chancery commercial practice although the Bar in the 18th century did not specialise quite as it does now. He was undoubtedly clever and was, it was said by his contemporaries, able to serve under 5 different Prime Ministers because he was more of a lawyer than a politician. His speeches in the Commons were carefully crafted, pro-establishment and ‘safe’. As he got older, he increasingly suffered from gout in his hands so could not hold a quill for more than a few minutes which meant that as Chief Justice he heard cases often without taking a note and was able to give lengthy extemporary judgments that withstand scrutiny to this day. Of course, there was no electronic storage of documents in those days, cases were shorter and reserved judgments were far less common than they are nowadays so perhaps his skills were not quite so remarkable as I like to think they were.

One of his cases that might be familiar to you is Scott v. Shepherd 96 Eng. Rep. 525 (K.B. 1773), commonly known as the "flying squib case." Shepherd tossed a squib, a small firework, into a crowded indoor market where it landed on the table of a gingerbread merchant named Yates. Willis, a bystander, grabbed the squib and threw it across the market to protect both himself and Yates. Unfortunately, the squib landed in the goods of another merchant named Ryal. Ryal immediately grabbed the squib and tossed it away, accidentally hitting Scott in the face just as the squib exploded. The explosion put out one of Scott's eyes. Was Shepherd liable for the injury to Scott’s eye? It was a case about novus actus interveniens.

De Grey, using almost biblical language, said “I look on all that was done subsequent to the original throwing as a continuation of the first force and first act which will continue until the squib was spent by bursting. I think that any innocent person removing the danger from himself to another is justifiable; the blame lights on the first thrower. The new direction and new force flow out of the first force and are not a new trespass. The writ in the Regsister {the court records} . . . for trespass in maliciously cutting down a head of water which thereupon flowed down to and overwhelmed another's pond shows that the immediate act need not be instantaneous, but that a chain of effects connected together will be sufficient. It has been urged that the intervention of a free agent will make a difference; but I do not consider Willis and Ryal as free agents in the present case but acting under a compulsive necessity for their own safety and self-preservation.”

The de Grey side of my family is interesting, to me at least, because in the mid-15th century an earlier de Grey, Lord Grey of Wilton, established the link between Gray’s Inn and the family. Over the years between about 1450 and 1510 the land which is now occupied by Gray’s Inn was variously sold or transferred to the Inn by Lord Grey and his family. The coat of arms on the exterior pediment above Gray’s Inn Hall is the same as the one on the panelling just through the doors at the end of Hall.

Shortly after my appointment as Solicitor General in 2010, I was showing off about my ancestor to the then Lord Chief Justice, our former Treasurer, the late and much missed Lord Judge. I referred to his successful career, not very subtly dropping the hint that I thought a similar career path was surely open to me. Lord Judge smiled engagingly and gently reminded me that some apparent precedents are easily distinguished on their facts. He was right – I fear that I inherited only two things from my forbear, pride in holding office as a Law Officer, and gout, but at least I can take allopurinol.

My father and grandfathers had no immediate connection with the Bar, in their day almost entirely a male profession, which no doubt explains why my father thought I was a tenant at Brick Wall rather than Brick Court and why he put me in touch with a solicitor when I was looking for pupillage. It was fortunate that he did because that solicitor was John Hartley, a partner at Bird & Bird, and the brother of Richard Hartley, then a young Silk in 1 Brick Court, the defamation law set. Apart from being one of the kindest and most generous men you could ever meet, he was made famous by Private Eye who caricatured him as Sir Hartley Redface QC, the irascible libel silk who was always acting against them. In the summer of 1976, he took me to lunch with two young barristers in his chambers, then in their early 30s, David Eady, a Bencher of this Inn and now a retired High Court judge, and Richard Rampton who sadly died aged nearly 83 last Christmas. Richard Rampton became perhaps the greatest defamation barrister of the late 20th and early 21st centuries, famous for his appearances in, amongst many other notable libel cases, the Moonies case, the Lord Aldington v Tolstoy war crimes case, and the Holocaust denial case, David Irving v Penguin Books and Lipstadt, which was later made into a film where he was portrayed by Tom Wilkinson in the film Denial. It is poignant to note that Richard’s junior, Heather Rogers who went on to become a leading defamation Silk herself, Tom Wilkinson, and Richard himself all died within a few weeks of each other late last year. Anyway, during that lunch Richard Rampton was simply informed by Richard Hartley that I was to be his pupil and so it was that my time in Chambers began. No pupillage gateway to squeeze through, no application form, no interview unless you count that lunch in an Italian restaurant, no pupillage committee, no student loan to pay off, but I was required to pay my pupil master 100 guineas, a hundred pounds and a hundred shillings, ie £105 – which Richard Rampton promptly returned to me. In the letter he sent me to let me know when my pupillage would start (emails were a long way off) he addressed me as “Dear Garnier” but added that this was a convention to be abandoned as soon as may be; and it was.

1 Brick Court, not to be confused with what is now Brick Court Chambers, was a small set of chambers - it never had more than 25 tenants and usually there were no more than 20 of us. But if a small set, it seemed to produce a disproportionate number of good lawyers who went on to the High Court and Court of Appeal: I have already mentioned Mr Justice Eady; but there were others: Mr Justice Gerald Slade, Mr Justice Ralph Cusack, Mr Justice Neville Faulks, who wrote the Faulks Report on defamation and was the uncle of Master Edward Faulks and his brother, the author Sebastian; Lord Justice Brian Neil; Lord Justice David Hirst; Sir Richard Ground, the Chief Justice of Bermuda, and Dame Victoria Sharp, the President of the King’s Bench Division, who did her pupillage with Richard Rampton a few years after me. Leon Brittan, the future Home Secretary and European Commissioner was also there which is partly why I ended up in Parliament too.

We were fiercely competitive when we did cases against each other, as we frequently did, very often with silks and juniors from chambers on opposing sides, but we were also fiercely protective of each other, the more experienced always willing to guide the less experienced. If you had a problem, you were encouraged to ask someone older how to approach it; and no matter how busy they were, they would spare you the time to help. On one occasion two members of chambers had a fist fight in a lift in the hotel they were staying in during an emotionally fraught trial in Leeds but then a few hours later met up for dinner together with their juniors. Sentimental as it may sound, we were a like a family who could fight like cats and dogs with each other on behalf of our clients but who believed in and tried (when not fighting in hotel lifts) to uphold the standards and conduct of the Bar as an independent referral profession.

When we first started in chambers I shared a room with Richard Ground of Bermuda-fame, and Patrick Moloney, later the senior civil judge in East Anglia and another Master of the Bench. Our room was at the top of Middle Temple Lane. There was one telephone which we would all leap to answer on the rare occasions that it rang and a small gas fire which we huddled round in winter. In the next-door room sat a rotund, chain-smoking barrister who slaked our thirst with a barrel of beer he kept in his room. He was an expert in copyright law but rather than becoming a judge he took Holy Orders and became chaplain to a secure mental hospital. We either dictated into a tape recorder or hand wrote our pleadings and advices which were turned into something intelligible by our patient and knowledgeable typist before being posted to or collected by our instructing solicitors. Instructions came on A3 paper wrapped in pink ribbon or, in cases with lots of papers, boxes of lever arch files, but even they had a back sheet containing our instructions. We never walked from Chambers to court in our bands and wing collars – we kept our court dress in lockers in the robing room. And if we came back here for lunch, we got changed at 1.05pm and then changed back again at 1.50pm. We certainly never stood on the steps of the RCJ wearing stick up collars and bands giving statements on behalf of our clients to the assembled press. Touting, advertising, showing off in any form was frowned on.

In many ways, the 1 Brick Court of the 1970s would not have been much different from the 1 Brick Court of the 1920s apart from the use of Dictaphones. In fact, when I first got there, Colin Duncan QC still had a desk in chambers, and he had won an MC on the Western Front. Our work as defamation lawyers – we did not talk of media law in those days and the Media and Communications list was a long way in the future – was concerned with what had been or was about to be printed and published in newspapers or books, or broadcast on the radio or television as libels, malicious falsehoods or contempt. Trials were heard by one of the more senior Queen’s Bench judges and a jury; after a few years in practice, it was an empty week if we juniors were not arguing an interlocutory point before a Queen’s Bench Master or running across to Room 98 in the Bear Garden to apply to the Judge in Chambers for an injunction or to appeal or uphold a Master’s decision. Pleadings were subject to intense scrutiny and detailed argument, so much so that one exasperated Court of Appeal judge whose practice had never brought him in contact with the delights of libel law complained that defamation actions were a stately saraband. I think Victoria Sharp almost had her first child in Room 98 so keen was she to finish her submissions before her daughter arrived. Fortunately, she was not named White Book, Volume 1.

In those days, the print media, the publishers of hard copy newspapers, were on a roll. Readership and circulation figures were buoyant. The print unions were losing the battle against their employers to preserve their Spanish practices. The Sun dominated the circulation figures for daily newspapers in the United Kingdom from the late 1970s, at times easily outpacing its nearest rivals, the Daily Mirror and the Daily Mail. For a brief period in the late 1990s and early 2000s, the Sun outsold its rivals by more than one million copies per day. In January 2000, its circulation was approximately 3.5 million per day, whilst the daily circulation for those two rivals was around 2.3 million. Advertisers reckoned on over 2 readers per copy. Newspapers were prepared to invest in journalism and to defend what they published.

I doubt that nowadays, when the economics of print journalism and hard copy publishing are far more difficult, that a newspaper would fund the worldwide research into the Unification Church, the Moonies, publish a serious in depth article about how they brainwashed their recruits and broke up families and, having spent 2 years preparing to contest the claim with its solicitors, a senior Silk and two juniors, defend the article as factually true and as fair comment in a 6 month trial before a judge and jury in the RCJ, call 100 witnesses flown in from the 4 corners of the globe, and then resist the claimant’s appeals in the Court of Appeal and the House of Lords. Associated Newspapers, the publishers of the Daily Mail, did that in the late 1970s because they had the money to invest in and defend their journalism.

The Moonies trial and my two leaders, Lord Rawlinson QC, the former Attorney General, and Richard Rampton, taught me a great deal about paperwork, advocacy and the preparation and the strategic management of a long trial. Peter Rawlinson allowed me, perhaps in my second year of post-pupillage practice, to take witnesses and draft submissions. Although in his mid-60s, a war veteran, a former Attorney General and member of the House of Lords who’d been in Silk for decades he treated me as a colleague, as a fellow member of the Bar and his equal.

Peter told me that when he was appointed Solicitor General by Harold Macmillan in 1962 after the Night of the Long Knives in which one third of the Cabinet was sacked, the Prime Minister gave him a long seminar on the history and duties of the Law Officers. He concluded by saying that Peter’s first duty was to the rule of law, his second was to Parliament and his third duty, and very much his third, was to Macmillan’s administration. I was appointed Solicitor General in May 2010 by David Cameron, an Honorary Bencher of this Inn, during a two-minute telephone call. I have no doubt that he could have given me a tutorial on the history and duties of the Law Officers had the subject interested him. But to be fair, he was distracted by trying to form the Coalition Government and had other things to do.

I doubt now if the Sunday Times could run its expose of the pregnancy drug thalidomide. It was the defining project of Harold Evans’s celebrated reign as editor of the paper from 1967 to 1981. In 1972, the Sunday Times highlighted the plight of the 370 or so British victims of the drug thalidomide, which caused major birth deformities in babies. Some were born with severe deformities, without complete arms or legs, and some totally limbless. It was unquestionably the greatest medicinal drug tragedy of its time and perhaps of all time. The UK distributor of the drug, Distillers, had offered the victims total compensation of £3.25m. The Sunday Times’s campaign helped prompt parliamentary action and a shareholder revolt at Distillers. A new compensation deal worth £32.5m was eventually agreed.

This was a case about the freedom of the press versus the law of contempt – where should the balance lie between the newspaper’s right to publish and the drug distributors, the Distillers Company’s right to unfettered access to the courts. The newspaper took the case all the way to European Court and achieved a public good through its campaign. Could the Sunday Times do that nowadays? Perhaps, but by no means certainly.

Sustained decline in the Sun’s figures due to digital disruption began in 2004, in line with print journalism more generally. It lost more than a million copies from its daily figures in the six-year period from 2012 to 2018. The Sun's long run at the top was finally broken in February 2018 when it was announced that the circulation of the free Metro newspaper had overtaken it for the first time.

By February 2020, daily sales of The Sun had fallen 8% to 1.38 million in the year to July, but at the time it was still the UK's biggest-selling paid-for paper. By May of that year The Sun's 42-year run as the top paid for paper came to an end when it was overtaken by the Daily Mail. The Sun on Sunday sold an average of 1.16 million copies a week, 111,000 fewer than the year before. News Group Newspapers reported that The Sun lost £68m in 2019 with sales falling as the company continued to deal with costs arising from the phone-hacking scandal. In April 2020, News UK instructed the Audit Bureau of Circulations or ABC that its circulation data should be kept private, and would only be shared with advertising agencies in confidence.

In the year ending June 2020, the Sun posted a pre-tax loss of £202m, a significant increase from £67.8m the previous year. 80% of the loss was thought to be from payments in damages from phone hacking, although revenue from sales and advertising was affected by the Covid pandemic. The value of the newspaper was written down by £84m, in effect to zero, with the company believing that The Sun and Sun on Sunday would not return to growth.

Many of you may not remember a time without emails, the internet, or social media. It was not until 1994, the year before I took Silk, that President Clinton became the first U.S. president to use the Internet to email a reply to an email from the prime minister of Sweden. It was also in the 1990s that the internet became publicly available, if on a much smaller scale than now. In 1994, journalists made their first tentative steps onto the internet. Just a few years later, online journalists were at the cutting edge of news reporting, both during and after the destruction of the World Trade Center on 11 September 2001. As that crisis unfolded, telegraph.co.uk serviced 600 page requests per second.

One commentator wrote in 2006 that “In just one decade online journalism has become central to people’s lives and as a result, some have abandoned print news altogether.” The rise in online publications and what became known as social media has affected the law and practice of defamation and contempt as much as it has the nature of the newspaper industry itself. I don’t imagine that many of you in this Hall aged under 50 buy a hard copy newspaper but get your news online.

Needless to say, it did not take all that long for non-traditional publishers, users of the internet and other platforms to take advantage of this new facility to post articles expressing themselves in trenchant terms. Many of them did not seem to realise that, although this medium provided them with greater freedom to say what they wanted to the public or sections of it, and without the limitations of editorial control and unmediated by formal checks and balances, the laws of defamation and contempt of court applied just as much to internet publications as to traditional publications. The case of Keith-Smith v Williams [2006] EWHC 860 (QB) provides a stark example. It was an action between two private citizens, not an oligarch against a well-resourced media company. It only takes a brief glance at the judgment to see the nature of the case:

3. In December 2003, there or thereabouts, he [the claimant] signed up to an internet discussion group under the auspices of yahoo.com, a discussion group entitled "In the Hole". [He used a pseudonym as did other members of the group] … it was possible by clicking on that identity within the internet discussion group to ascertain who he was. There was a link to his profile which contained personal details about him, including his address, telephone number and so on. There was also a link on to his business website. Thus it was that if he contributed to the discussion within that group by posting a notice or a comment he was identifiable to people visiting that site.

4. The defendant … was also a member of the same discussion group. She [also]operated within the group under a pseudonym or a number of different pseudonyms, ....

5. Although there were perhaps only a hundred or so members of the discussion group, anybody could access the site over the internet and read what was upon it. To contribute to the discussion, one had to be a paid up member. Thus, anything that was said on the site could be read not only by members, but by the vast numbers of people who found the site on the internet. It seems that the purpose of the site, at least to a large extent, was to engage in political discussion and some interchanges and exchanges of views were friendly, but after a time it was clear that the defendant, operating under the pseudonym … was beginning to get abusive towards the claimant, possibly because she disagreed with his political views or the perception of them which she had.

6. She began in the year 2004 to refer to him as lard arse and give him that nickname, or lard brain. Then, over a period of time, she became more abusive calling him a nonce, a sexual offender, accusing him of sexual harassment of a female co-worker, calling him a racist bigot, a Nazi. She also alleged within her statements on the site that he had been charged with soliciting boys, charged with 'cottaging' offences and that he was a sexual deviant of the most perverted kind. ...

7. One of the difficulties which [the Claimant] faced was in identifying who it was who was making these statements about him. In June 2004 he made an application to the High Court requiring the site operator to disclose the identity of the person making these statements, Gosforth. Until an order of the court was obtained the site operator was not prepared to give that disclosure, but after the court order the identity of the defendant became known to the claimant's then solicitors…

10. I have mentioned he went to solicitors ... and a letter before action was sent and subsequently in March 2005 proceedings were served upon the defendant. These only served to provoke the defendant into more frenzied abuse on a different discussion group site. In December 2004 she was particularly abusive, and her statements demonstrated that she was, if I can use the phrase, cocking a snook at the court and the solicitors and that she had no intention of stopping her defamatory behaviour.

11. On 2nd March 2005, she posted the following phrase:

"I told your poxy solicitors to fuck off and they did, in short jerky movements."

12. The service of proceedings on 8th March only provoked even more abuse and repetition of the defamatory statements. The claimant was referred to as a slimy fat bastard, a fat racist slug and a maggot, amongst other choice expressions...”

I am not suggesting that every defamation case involving publication by social media is concerned with language as reminiscent of some of the bawdy wording that appears in the cases from the time of Good Queen Bess. In those days slander actions often involved assertions of sexual incontinence or having sexually transmitted diseases. That said, a high proportion of the 21st century cases are about words that would not find their way into the Golden Treasury. In some respects, social media posts have become the back garden fence over which people in their unguarded or angry moments just let rip. There’s no one, like an editor, to tell you to be more restrained or a night lawyer to ask for proof of the truth of what you’re about to publish. The potential for making hasty mistakes is huge and if you have followers who “like” what you say it’s encouraging to go further. Although the Keith-Williams case was claimed by some to have contradicted a common assumption among bloggers that it was the publisher (that is the platform provider) and not the writer who was responsible for any libel claims that they may generate, it should have taken only a moment’s thought in advance for the legal reality to be apparent. The defendant was ordered to pay £10,000 in damages and I think she got off lightly.

Some social media users try to be a bit more subtle than the defendant in the lard arse case. Take, for example, the case brought by Lord McAlpine of West Green, the former Conservative Party Treasurer, against Sally Bercow, the wife of the then-Speaker of the House of Commons. This case took place at the time of the exposure of Jimmy Saville as a paedophile and sexual criminal. Lord McAlpine instructed me very shortly after I left Government and, although acting against the BBC, ITV and the many other defendants who defamed him was entirely normal, acting against the Speaker’s wife whilst still an MP, albeit under the cab rank rule, could have caused difficulties. To be fair to the Speaker, he never allowed that to influence his attitude towards me as an MP working in Parliament either during or after the case.

This was not quite the first libel action brought on a Tweet – that was Cairns v Modi in 2012 in which the New Zealand cricketer Chris Cairns recovered £90,000 from Lalit Modi, a retired Indian cricketer and the former the Chairman and Commissioner of the Indian Premier League (IPL) and Vice-President of the Board of Cricketing Control for India (BCCI). He tweeted that Chris Cairns was guilty of match fixing and then attempted unsuccessfully to prove it was true. Mr Justice Bean, as he then was, or Master Bean as he still is, said that £15,000 of the total damages was to reflect the increased upset and injury to reputation caused by defence counsel’s cross-examination and final speech, an award upheld in the Court of Appeal by Lord Judge, Lord Neuberger and Eady J.

The original Tweet in Cairns was received by only 65 followers within England and Wales. The second publication, to an online cricket publication, was on their website only for a few hours. It was read by about 1000 people. It carried the less grave but nonetheless serious meaning that there were strong grounds for suspecting that the claimant had been involved in match fixing.

But if publication is limited to a relatively few readers, that does not mean that damages should be reduced to trivial amounts. In 1935, long before the internet was thought of, Lord Atkin said in Ley v Hamilton 153 L.T. 384, cited by Lord Reid in Broome v Cassell [1972] AC 1027 at 1092G:

"It is precisely because the 'real' damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach…"

Bingham LJ observed in Slipper v BBC [1991] 1 QB 283, 300,

“… the law would part company with the realities of life if it held that the damage caused by publication of a libel began and ended with publication to the original publishee. Defamatory statements are objectionable not least because of their propensity to percolate through underground channels and contaminate hidden springs.”

These considerations have been identified in Australian case law, where the convenient expression, “the grapevine effect” has been adopted: see e.g. Crampton v Nugawela [1996] NSWSC 651.

This remains true in the 21st century, except that nowadays the poison tends to spread far more rapidly as Mrs Bercow came to realise.

Lord McAlpine claimed he had been defamed by comments implying that he was a paedophile published by Sally Bercow on her Twitter account. This followed the broadcast on 2 November 2012 of a report by BBC Newsnight which linked an unnamed "senior Conservative" politician to sex abuse claims. On 4 November 2012, Bercow tweeted "Why is Lord McAlpine trending? innocent face"

When the allegations against Lord McAlpine were shown to be unfounded, Mrs Bercow was one of several people that he threatened with legal action. The BBC subsequently apologised in open court and paid him £185,000 in damages. ITV also apologised and paid him £125,000 in damages – in their breakfast news programme the presenter had briefly held up to the camera a list of names (in which his was readable) suspected of being the senior Conservative in question. Lord McAlpine also took action against users of Twitter who had repeated the claims. Those with fewer than 500 followers were allowed to settle the matter by donating £25 to the BBC Children in Need charity. Lord McAlpine also donated the libel damages from BBC and ITV to Children in Need and other charities.

His solicitors said that they would continue to pursue 20 "high profile Tweeters" (users with more than 500 followers) including Mrs Bercow, the comedian and actor Alan Davies, and the writer George Monbiot. They announced: "Twitter is not just a closed coffee shop among friends. It goes out to hundreds of thousands of people, and you must take responsibility for it. It is not a place where you can gossip and say things with impunity, and we are about to demonstrate that."

In November 2012, Monbiot published "Lord McAlpine – An Abject Apology" on his personal website and apologised for acting "in an unprofessional, thoughtless and cruel manner". Monbiot also wrote personally to Lord McAlpine and agreed to undertake charity work. Davies apologised publicly and privately to him in November 2012. In contrast, in December 2012 Mrs Bercow instructed solicitors and counsel to defend the claim. At the time that the tweet was made she had 56,000 followers, "a bigger readership than many regional newspapers" I suggested to Tugendhat J. She was no kitchen table blogger.

If this was not the first Twitter libel case it was an early case in which the issue of the meaning of the words was tried in advance of the main action. This is now commonplace and indeed almost all the cases before judges in the Media and Communications List in the KBD now are preliminary trials on meaning: what do the words complained of mean, are they a statement of fact or of opinion, and are they defamatory at common law? Huge amounts of time and expense are nowadays saved by the early determination of these questions. As often as not, once those questions are determined the case settles without a trial on the evidence either because the claimant can see he has a weak complaint, or the defendant can see he has insufficient material to defend the libel. Not so long ago, the question of meaning would be left until the end of the claimant’s case when the defendant would make the equivalent submission to a criminal defendant that there was no case to go before the jury and, if there was, the judge would then rule on whether the words were capable of a defamatory meaning but leave it to the jury to decide as a matter of fact what that meaning was.

Tugendhat J ruled that the phrase "innocent face" was intended to be read "as a stage direction" with readers "imagining that they can see [Sally Bercow's] face as she asks the question in the Tweet. The words direct the reader to imagine that the expression on her face is one of innocence, that is an expression which purports to indicate (sincerely, on the Defendant's case, but insincerely or ironically on the Claimant's case) that she does not know the answer to her question."

The judge said that there were two different kinds of meaning recognised in law: "a natural and ordinary meaning" and "an innuendo meaning". Citing Jones v Skelton [1963] 1 WLR 1362 at 1370-1 Tugendhat J explained that a natural and ordinary meaning may be either the literal meaning or a meaning "that does not require the support of extrinsic facts passing beyond general knowledge". An innuendo meaning, he said, "is a meaning which can be implied from the words complained of, but only if the reader also knows other facts (which are not general knowledge). These are generally called extrinsic facts." The judge decided that any reasonable reader would understand both meanings of Bercow's tweet and interpret the "innocent face" as insincere and ironical: "There is no sensible reason for including those words in the tweet if they are to be taken as meaning that the defendant simply wants to know the answer to a factual question." The judge decided that the Tweet meant "in its natural and ordinary defamatory meaning, that the Claimant was a paedophile who was guilty of sexually abusing boys living in care". Regarding the innuendo of the tweet, Tugendhat J found that the Tweet carried a meaning "to the same effect" and found that the tweet was "an allegation of guilt. I see no room on these facts for any less serious meaning." As it had already been accepted by Mrs Bercow prior to the hearing that Lord McAlpine was innocent of the allegations her tweet was "seriously defamatory" and indefensible in law.

The judgment is one of great public interest and provides both a warning to and guidance for people who use social media. Legal commentator Joshua Rozenberg noted: "The law of defamation is well known to those who write for a living. One hopes Twitter users are beginning to learn what a powerful and potentially dangerous weapon they have at their fingertips. A tweet is more like a broadcast than an email and is subject to the law of libel in the same way."

As Warby J noted in Monroe v Hopkins [2017] EWHC 433 (QB), paragraph 34ff, the well-established rules about discerning the meaning of words in defamation cases are perhaps easier to apply in the case of print publications of long standing such as books, newspapers, or magazines, or static online publications, than in the more dynamic and interactive world of Twitter, where short bursts of pithily expressed information are the norm, and a single tweet rarely exists in isolation from others. A tweet that is said to be libellous may include a hyperlink. It may well need to be read as part of a series of tweets which the ordinary reader will have seen at the same time as the tweet that is complained of, or beforehand, and which form part of a “multi-dimensional conversation”.

The most significant lessons to be drawn from the authorities as applied to a Twitter libel seem, Warby J said, to be the rather obvious ones, that this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter. As to the characteristics of the readership, it has been said that in a Twitter case, “The hypothetical reader must be taken to be a reasonable representative of users of Twitter who follow the Defendant”: McAlpine [58] (Tugendhat J). The mechanics of the medium mean however that the readership of a tweet may go beyond followers of the defendant and extend to followers of other Twitter users.

All of this is a long way from the prosecution for seditious libel of the printers of the Letters of Junius by Sir William de Grey when Attorney General in the late 1760s. Or is it? Even if the means of publication may have changed somewhat since Caxton invented the printing press when Lord Grey was giving land to Gray’s Inn, I have a suspicion that, so long as he had taken his allopurinol, my forebear could have dealt with a social media defamation case today every bit as well as a flying squib case then, happily tapping away on his laptop while listening to the evidence and the arguments…but then, perhaps, he would have remembered it all without taking a note.

But now let us head for dinner and enjoy ourselves in the very place where he presided as Master Treasurer in 1766.

The Rt Hon The Lord Garnier KC

4 Pump Court, Temple, EC4Y 7AN