In my blog two days ago on the impact on Twitter of the Lord McAlpine saga, I commented that the Tory peer ‘is apparently not looking for more damages’. That position seems to have moved on and, in fact, he is. But in an English defamation claim, how much is enough?
A defamatory allegation is one that tends to lower the subject in the estimation of right minded members of society. Where a person, identified as the subject of a defamatory allegation published to third parties, is successful in a libel action, that person is entitled to financial damages to remedy his wounded reputation.
Damages are intended to compensate the claimant for the wrong suffered -- for damage to reputation, to vindicate a good name, and to take account of the hurt and distress that the publication has caused. In England, damages are linked to personal injury awards and accordingly, there is a ceiling for general damages of around £240,000 for the most serious libels, those involving, for example, allegations of murder or, as in this case, child abuse.

Telephone number awards

Back in the days when juries made such large awards that the sums were compared with telephone numbers, the courts finally decided that enough was enough, and that it was ‘offensive’ for a libel claimant to secure significantly more for the loss of reputation than a claimant who had suffered the loss of an eye or a limb. Earlier this year of Cairns v Modi, the claimant -- New Zealand cricket captain Chris Cairns -- was falsely accused of match fixing by the former Indian cricketer. England’s Court of Appeal – hearing an appeal on the £90,000 damages awarded at first instance – commented that ‘the process of assessing damages is not quasi-scientific, and there is rarely a single right answer’.
However, when it comes to voluntary, out-of-court settlements, what a complainant might secure is even less scientific. While the accused publisher might have an eye on the damages that could be awarded at trial if he were actually sued, there can be occasions on which the claimant can write his own ticket. And it appears as though the McAlpine affair is one of those.
Undoubtedly, an allegation of paedophilia is defamatory. In 2002, two English nursery school nurses recovered what were then maximum damages of £200,000 each for an allegation of the abuse of children in their care. Similar allegations have been falsely levelled at Lord McAlpine, and although the BBC did not name him, that has not impeded his ability to secure an abject apology and £185,000 damages from the broadcaster.
That is because of ‘jigsaw identification’, namely, the piecing together of his identity through other sources, which in this case was a combination of the BBC making the allegations and then much twittering on the Internet as to the identity of the perpetrator, followed by the publication of a list of names from the internet live on air by ITV presenter Phillip Schofield to Prime Minister David Cameron.

It’ll cost you a fiver

Reports suggest that Lord McAlpine is inviting anyone who tweeted the defamatory allegation to come forward with an apology and a token payment of at least £5 to charity. However, he is also reported to be intent on pursuing ITV for a sum in excess of that coughed up by the Beeb, and to be keeping his powder dry regarding various high profile tweeters on the subject.
But how much will he get? In Cairns v Modi, the claimant was awarded £75,000 – increased by £15,000 for the manner in which the defendant sought to justify the allegations, compounding the damage done and hurt caused -- for serious allegations of match fixing. The Twitter-user who published the defamatory tweet had at the time approximately 65 followers in England and Wales. So, give or take a bit, that’s around £1,000 per publication.
If an allegation of match fixing is worth £75,000, then it’s not hard to see that an allegation of child abuse could be worth between £200,000 and £240,000. If Lord McAlpine was defamed to hundreds of thousands of publishees, then the damages could technically be astronomical.

Double trouble

But if the award were made by a court, it is arguable that it could be subject to the rule against double recovery set out in the Defamation Act 1952. This provides that the defendant is entitled ‘to give evidence in mitigation of damages that the plaintiff has recovered damages, or has brought actions for damages, for libel or slander in respect of the publication of words to the same effect as the words on which the action is founded’.  
So, were ITV or any of the other high profile publishers actually taken to court, they might seek to prey this in aid. If they were found liable to the peer, they could ask the court to take into account the £185,000 the BBC had already handed over. Lord McAlpine’s legal team in turn might argue that the two audiences of the broadcaster, on the one hand, and Twitter, on the other, were entirely different, so that separate damages were due.
No-one can blame Lord McAlpine for wanting to put down a marker with those who, in the words of journalist Janet Street-Porter this weekend, engaged in his ‘mob slander’. But the amount of cash that translates to is as yet unclear.
Whatever the value attributable to Lord McAlpine for the serious slur on his reputation, this saga is a lesson for those who enjoy a little bit of fun on the internet at the expense of others. While it may not have the same potentially positive commercial consequences, the publication of a tweet carries the same responsibilities and possible hefty repercussions as the publication of an article in a newspaper or by a mainstream broadcaster.
Those users who don’t have the training, the experience, the support of a legal team and the wherewithal to pay out damages if they get caught in the cross-hairs of a determined claimant – and they will be many -- would do well to bear that in mind before pressing ‘tweet’.