Twitter is safer in America: lessons from two sex scandals

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: