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Summary:

Being falsely accused of a crime like child abuse is a traumatic experience that has become worse with social media. Two recent incidents in the US and UK highlight the problems — and show America’s approach to libel works better in the age of Twitter.

Two recent incidents raise questions about how the law should respond when social media wrongly labels someone a paedophile. The incidents, which took place on different sides of the Atlantic, also showed why free speech laws are better in America.

In case you missed it, the first incident involved a BBC television show that claimed an unnamed former UK politician abused boys. Soon after, people on Twitter used “jigsaw identification” to conclude that the person is question was Lord McAlpine, and some of their conclusions were retweeted 100,000 times. The BBC soon acknowledged the report was false and apologized to Lord McAlpine who said the public hatred he endured was “terrifying.”

Meanwhile, in New York, a man accused Sesame Street puppeteer Kevin Clash of carrying on an affair with him when he was a minor. Even though the allegation were unproved, Twitter immediately lit up with tasteless jokes linking to the Clash story like:

Several days later, the accuser recanted his story and said he was of age and that the affair was consensual. On Sunday, the story became more confused with reports of a payoff and a criminal history on the part of the accuser.

Trial by Twitter and libel law

The facts aren’t identical but both situations involve public figures subjected to “trial by Twitter” over terrible allegations. The legal fall-out, however, has been very different.

In Britain, Lord McAlpine has already obtained a libel settlement from the BBC for falsely suggested he was a paedophile on national TV. The legal action didn’t stop there, however. Lord McAlpine’s lawyers have also vowed they will go after “a very long list” of people who repeated the claims on Twitter.

Meanwhile, neither Clash nor Sesame Street have threatened to sue the media or anyone who shared the story on Twitter. This response reflects not only different facts but also very different libel laws in the US and Britain.

“[I]n America it’s hard for famous people (and especially government officials or former high government officials) to sue people for defamation.  The plaintiff has to prove that the defendant knew the allegation was false, or at least knew it was quite likely false,” explained Professor Eugene Volokh, a noted First Amendment scholar at UCLA, in an email. ” Moreover, if the defendant is just stating an opinion (“Based on what I read in this article, so-and-so must be guilty”), that too is constitutionally protected against a libel lawsuit.”

Volokh added the rules are different for non-public figures. In the UK, however, the overall libel law is much stricter and puts the burden of proof on the speaker to show a statement is true. This means the rich and powerful in Britain have long used libel law to intimidate or silence critics.

“The English law has been completely fixated on reputation and undervalued the public interest in free speech, and has been unwilling to protect the media against good-faith mistakes,” according to an email from Professor Stephen Scott, a constitutional law expert at McGill University. “This has not only been in the context of defamation, but in book/magazine, theatre and cinema/video censorship.”

Can you sue 100,000 Twitter users?

If Lord McAlpine’s lawyers follow up their threat, it will be interesting to see how far they get. Under UK law, they can go after not just people who tweeted conclusions about the BBC show but also everyone who retweeted those conclusions. In theory, half the country could be in court by the time this is done.

Those in America are safe from the Lord’s lawyers, however. That’s because Congress in 2010 unanimously passed a law called the SPEECH Act to put a stop to so-called libel tourism — where powerful people around the world would get a libel judgement in London and then show up in America to collect.

Unfortunately, the American shield is of little help to UK Twitter users. Those users not only face legal exposure over Lord McAlpine, but will have to decide whether to self-censor the next time the BBC reports news they can’t confirm. While false accusations about paedophilia are a terrible thing, such  legal campaigns that stymie free expression may prove an even greater evil.

As services like Twitter cause news to spread faster and more broadly than ever, courts in the UK and elsewhere will have to find new ways to balance reputations and free speech.

[Update: A reader objected to the original headline which said “BBC and Elmo sex scandals.” My intent was to provide context not sensationalism but I take the point and have updated:

  1. Yes, companies are much safer in the USA. Who cares if people are wrongly accused.

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  2. Shouldn’t you title this article, “Defamation is safer in America…” That’s what it amounts to, and doesn’t sound as good when you say it that way does it?

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  3. Monique Harrison Sunday, November 18, 2012

    So In the UK people are held responsible for their actions. In the US they are not??????

    How is free speech served by allowing people to spread vicious life-destroying trash without any personal accountability? Free speech is for grownups. And grownups accept responsibility for any harm they cause.

    I am American. Proud of our history of individual freedom and personal accountability. And sorry that my country is increasingly populated big babies who think they are not responsible for their own actions.

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  4. Thanks for your comments. I didn’t intend to suggest that there are no limits to free speech. The BBC behaved badly here and is being deservedly punished (though it’s a shame UK citizens ultimately foo the bill). But do you think everyone who repeats the BBC should be punished too?

    But I stand my ground on the issue of libel laws. In general, I greatly respect role of UK judges in developing our common law but their track record on defamation is a disgrace.

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    1. Jeff: I think your question misses the big difference between these two case. In the UK case, the BBC decided (after consulting with lawyers) that they didn’t have enough evidence to the name the person, and it was in that context that people speculated over who it was.

      In the US case, as I understand it, several news outlets named a person and people shared links to the stories they ran.

      The latter is a relatively easy mistake to make – linking to a story that has been published, contains apparent evidence but which later falls apart under closer scrutiny. The former – naming someone that the BBC had decided it didn’t have the evidence to name – is rather different (even acknowledging that some people were saying they thought the BBC didn’t name the person because of a conspiracy / cover-up / lack of bottle).

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      1. the major difference is that in the McAlpine case the accusations were completely unfounded and the accuser recanted quickly.

        in the Kevin Clash case the argument wasn’t that Clash never had sex. the argument was Clash had sex with the guy when he was 17, not 16.

        it is a case of false equivalency

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  5. thewarriorforjustice Monday, November 19, 2012

    In India, it is becoming more and more dangerous to say anything.

    There has been a law pass called 66A in IPC on whose name arrests are happening for the allegedly corrupt, high and mighty.

    Recently the son of the current finance minister Mr. P. Chidambaram have one small time business owner get arrested at the dead of night. The police was asking for additional 15 days of judicial custody ! This is all due to a twitter message.

    Today 2 girls are arrested for posting comments facebook comments. Yes, they just commented that Mumbai should not be getting into a bandh mode due to one person passing away as per the police!!

    This week, one person was arrested in Chennai for taking the photograph of finance minister – again Mr. P. Chidambaram.

    I do not know when someone in India now a days can be arrested. Looks like citizens have no say on anything.

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  6. Peter, say hello to the Sheffield Forum for me I haven’t posted there for a while.If you canhge people’s names but they’re still recognisable, then you could still be in trouble; and it’s hard to write an effective memoir without making people recognisable.The best solution is to seek proper, written permission from those who are discussed, but this can be tricky, especially if you’re writing about difficult times. There’s no easy solution, I’m afraid.I’d ask your agent and publisher to advise you publishers have legal teams to work in situations like these. I’d strongly advise against self-publishing such a book (Google the name Rebecca Brandewyne if you want to read why), and would also advise against using your local solicitor if you’d rather get your own legal advice: you need a lawyer who is a specialist in intellectual property for a definitive answer.

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