Civil conduct | Acting in social media libel claims

Mr Justice Bean's judgment in the first Twitter libel trial illustrates how the legal and practical issues arising from publication on social media can differ from more traditional publication methods.

Created in 2006 Twitter has rapidly gained worldwide popularity, with over 140 million active users in 2012, generating over 340 million Tweets daily.

On 5 January 2010 Lalit Modi, formerly the Commissioner of the Indian Premier League (IPL), the popular Twenty/20 cricket franchise, published on his Twitter account allegations that the well-known New Zealand cricketer Chris Cairns had been removed from the list of players available to play in the forthcoming IPL tournament because of his 'past record in match fixing'. He repeated the allegations the same day in an interview he gave to an online cricket magazine.

While Mr Modi's tweet was removed within 16 hours of publication, it had been automatically published to those individuals on Twitter who followed him, who in turn re-tweeted his comments to their followers, (and so on, to an extent the experts determined was unquantifiable). His comments were also picked up and re-published by numerous websites (mainly cricket blogs) throughout the world.

Chris Cairns refuted the allegations and demanded an immediate apology. Mr Modi refused to apologise or withdraw the allegations; instead he said he would justify them in court.

Cairns exonerated

In March 2012 following an eight-day hearing by a judge alone, the decision completely exonerated Chris Cairns of any involvement in match fixing (Cairns v Modi [2012] EWHC 756 (QB)).

Mr Modi did not himself give evidence, but called three Indian players who played with Chris Cairns in the Indian Cricket League in 2007 and 2008. The judge expressed grave concerns about the defendant's evidence, and said in relation to one witness: 'I regret to say that I cannot place any reliance on a word Mr Gupta said'.

By contrast the judge held that Chris Cairns, despite being subjected to eight hours of aggressive cross-examination, was a credible witness. The judge said: 'Despite prolonged searching and occasionally intrusive questioning about his sporting, financial and personal life he emerged essentially unscathed'.

Quantifying the extent of publication within this jurisdiction required IT expert evidence. At trial, the experts presented a joint note which estimated the number of Mr Modi's Twitter followers in the jurisdiction at the time of publication who would have read the comments to be between 35 and 95. It was accepted there would have been publication beyond that, through re-tweeting and re-publication, but it would have been a hugely costly and disproportionate exercise to try to quantify this.

Once sufficient publication had been established, the judge applied the usual legal principles of defamation. Mr Modi's comments were plainly defamatory of Chris Cairns. To establish a defence of justification Mr Modi had to prove what he said was true (or substantially true), or that there were strong grounds for believing that Chris Cairns had been involved in match fixing. The judge held that he had 'singularly failed' to do so.

Chris Cairns was awarded £75,000 in damages, which the judge increased by a factor of 20 per cent to £90,000 because of the 'sustained and aggressive assertion of the plea of justification' which included a highly charged attack on the character and integrity of Chris Cairns both during cross-examination and in the defendant's ?closing speech.

Quantifying damages

Although this case does not create any new law regarding establishing liability for defamation, and permission to appeal on liability has now been refused by the Court of Appeal, an appeal is being pursued on the issue of the quantum of damages, including the 'aggravation' element.

This is the first damages award resulting from publication across the Twitter network. As already mentioned the precise extent of such publication within the jurisdiction, unlike with newspapers, was impossible to quantify precisely. Not only were the numbers of readers of the tweet difficult to establish, but the speed and range of publication were breathtaking.

There is no doubt that online social media have completely changed the landscape in defamation claims. Comments published by anyone with a significant following can go viral almost instantly to a global audience. As the judge observed, 'nowadays the poison tends to spread far more rapidly'.

Since comments published on Twitter may not be accessible for long both clients and lawyers need to act quickly. A screen shot of the words complained of must be taken without delay, since substantial damage can be done in a very short space of time. Speedy and decisive assessment of whether the comment is defamatory and, if so, action to frame a complaint is imperative.