First Twitter Libel Damages, By the Pound

While the two American lawsuits that each could have been the first known defamation suit stemming from a Twitter posting both settled (for details, click here and here), the settlement of a British case has now led to the first damage award in that county in a Twitter defamation case: £3,000 in damages (~ $4,840), plus £50,000 (~ $80,730) in court costs.


As detailed by the BBC, Agence France-Presse (AFP), the Daily Mail and others, Caerphilly, Wales town councilman Colin Elsbury sent a tweet prior to local elections in 2009 alleging that his opponent for a county council seat, fellow town councilman Eddie Talbot, had been "forcibly removed" from a polling place by the police.

But it was another man who was removed from the voting location. Elsbury sent subsequent tweets correcting his error, but Talbot still sued.

"This sends out a message out to people to be careful what they say on social network sites - it could prove expensive," Talbot told the Daily Mail after the settlement was announced.

Elsbury, who won the 2009 election, also agreed to tweet an apology as part of the settlement.  And he concurred about the dangers of Twitter and other social media. "This case will no doubt act as a warning to people, including politicians, to be extremely careful when using Twitter and other social media such as blogs," he told the newspaper.

It's just a matter of time before there is a defamation trial in an American court stemming from Twitter. But it's important to note that Elsbury, as a public official, would had a harder time winning a defamation suit in the U.S. than he would have in Wales, had the case gone to trial there.  That's because under New York Times v. Sullivan, 376 U.S. 254 (1964), public officials have to prove that the speaker (or tweeter) acted "actual malice" -- knowledge that the statement was untrue, or reckless disregard for whether it was true or not.

In Great Britain, the House of Lords -- the nation's highest court until the creation of the British Supreme Court in 2009 -- has adopted a more limited version of the actual malice test.  Known as the "Reynolds defence" (gotta love that British spelling) after the case in which it was first announced (Reynolds v Times Newspapers Ltd, [2001] 2 AC 127).  Succinctly, the Reynolds defence states that

There are occasions when the person to whom a statement is made has a special interest in learning the honestly held views of another person, even if those views are defamatory of someone else and cannot be proved to be true. When the interest is of sufficient importance to outweigh the need to protect reputation, the occasion is regarded as privileged.

Reynolds v Times Newspapers Ltd, [2001] 2 AC 127, para. 13.

Meanwhile, across the pond, the wait for the first American Twitter libel trial continues....