Welsh Councillor Colin Elsbury has been ordered to pay £3000 in damages and £50,000 in costs to a political rival in what is believed to be the first order in damages made by a UK Court over comments made on Twitter.
Elsbury’s tweet came during a by-election in 2009 during which he stood for election to Caerphilly Town Council against the Claimant, Eddie Talbot – Elsbury claimed that Talbot had been removed from a Polling Station by Police during the Hustings and eventually went on to win the by-election by 160 seats.
Despite claiming that the Tweet was sent as a result of mistaken identity – a member of the public was removed from a polling station on the date in question, but not Talbot – and an attempt to correct himself, Elsbury was sued and ordered to pay a combined total of £53,000 in costs and damages on March 10th by Cardiff High Court.
It’s always been the case that the law, and in this case UK defamation law, applies to online activity as much as offline activity. Twitter and any number of other social media platforms allow their users to post pretty much anything, including statements of opinion made in the heat of the moment and without a full grasp of the factual background, to a potentially global audience. This means that the only way in which unfair and defamatory comment can be restrained is either via a complaint to the website or platform in question or by taking legal action.
This ruling was only a matter of time in coming. Twitter has already been used to serve injunctions and has been used regularly as a forum to promote the reform of UK Libel Law – in 2009, commodities trader Trafigura obtained a “Superinjunction” to prevent the reporting of the fact that they had already obtained an injunction to suppress details of their alleged involvement in a chemical spill off the ivory coast. When news of the Superinjunction reached Twitter, along with the fact that it had been discussed in Parliament, it only took a matter of hours for the full details of the parliamentary question raised to leak online and the story became very public very quickly thanks to a number of motivated Political Bloggers and the “Twitterati” in general.
As is the case with many disputes, most libel cases tend to settle far before reaching Court, and although this area of law is a target for Government scrutiny in the wake of massive costs orders being made as a result of Lawyers entering into “no win, no fee” agreements under which they receive nothing up front but can recover up to twice their fees if the case is successful, internet libel is still very much a “growth area” for Claimants. After all, it’s far easier to attract thousands of “followers” to your account by making a controversial or defamatory comment without any major financial investment rather than spending years building up a circulation in print or through a recognised news website.
And that’s the point – once the Court has made a decision as to whether or not the statement in question is defamatory, which Elsbury’s Tweet almost certainly was:
“It’s not in our nature to deride our opponents however Eddie Talbot had to be removed by the Police from a polling station.”
The Court will then move on to consider what amount of damages should be paid to the Claimant.
Talbot’s case rested on the Tweet’s suggested meaning that he may have been removed as a result of the commission of a criminal offence and so “lowered his reputation in the opinion of the man in the street”,
Although the UK Court has awarded hundreds of thousands of pounds to very high profile claimants such as Elton John, who recovered £350,000 (the largest damages award of its time) in the 1990s after claims by a national newspaper that he had been involved in a “gay orgy”, since then awards have been seriously reduced.
In Elsby’s case, the fact that he only had 28 followers on Twitter almost certainly factored into the size of the damages award, although this is not the only issue. The recent Twitter libel claim involving cricketer Chris Cairns saw the Court confirm that the number of the Defendant’s followers was only one of a series of issues to be taken into account; in this case, only 100 followers were thought to have seen the offending Tweet which was enough for the Court to refuse an application for the Case to be struck out as an abuse of process.
When considering how much to award a Claimant, the Court will take into account a number of factors including the seriousness of the allegation, the size and influence of circulation, the effect of publication, the existing reputation of the claimant and the behaviour of both parties.
Even though the award made against Elsbury was relatively small when compared to recent cases which saw the Chief Executive of a Housing Association awarded £100,000 in relation to serious allegations of corruption and a Law Student awarded £10,000 after being falsely named as a paedophile on Facebook, this case proves the rule that small awards in damages for defamatory statements made against a Claimant who isn’t high profile enough to command a large-scale award can still generate huge awards in costs – in this instance, around 1700% of damages.
Although this case may well open the floodgates on a number of similar claims, care should be taken before heading to Court with a libel claim. A recent case has seen Naomi Campbell’s infamous 100% success fee in her 2004 privacy claim against the Mirror found to be an infringement of the Mirror’s right to freedom of expression, and is likely to leave “no-win, no-fee” arrangements with huge success fees living on borrowed time – this may mean that more lawyers refuse to take cases on similar terms and force Claimants to find their own cases from the start, which may be easy for Elton John but would have been much more difficult for Eddie Talbot.
Whatever the case and whatever the future of libel claims in the UK, this ruling will almost certainly pave the way for a number of similar claims and is a stark reminder of the potential consequences of posting defamatory content online. As much as your audience may seem anonymous at first, Bloggers, Tweeps and any other member of the online community should now be very much aware that, even though you may have thousands of “Friends”, a poorly judged Tweet can make you at least one very dangerous enemy who could prove expensive to be made to “like” you any time soon.”