The reasoning for Lord McAlpine’s libel action against Sally Bercow just does not stack up
Sally Bercow, the speaker’s wife, is a loudmouth. We don’t dispute that. There’s little she won’t say or do to keep herself in the public eye and whether draped in nothing other than a sheet in the Palace of Westminster or fooling around in the Celebrity Big Brother house, she comes across as a bit of a fool.
The current libel action against Mrs Bercow, though, just doesn’t make sense. It is an overreaction on the part of Lord McAlpine and rather reminds us of the case of Oscar Wilde and the Marquess of Queensberry.
Both cases feature public figures that ought to have known better than to enter the courtroom. Wilde, like Bercow, loved the limelight and Queensberry, as with McAlpine, probably would have been preferred to have been left in peace. Both are cases that acres of press inches have and will continue to be devoted to, but as the defamation action against Bercow involves the relatively new medium of Twitter, it certainly will set precedents.
When allegations, now accepted as false, about Lord McAlpine surfaced on Twitter, Sally Bercow tweeted this message to her 60,000 followers:
“Why is Lord McAlpine trending? *Innocent face*”
This single message is the basis of the action against Bercow and last week, Sir Edward Garnier QC, for the peer, told the High Court:
“We are not talking about some kitchen table blogger addressing perhaps herself and one other person. We are talking about a pretty widespread readership.”
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Mrs Bercow’s tweet, to our minds, was not especially contentious and her following is not that great. The actor Stephen Fry, for example, has 5,700,000 followers on the site whilst Jeremy Clarkson has 1,700,000. The word “trending” similarly is used widely every day on the social media site and it indicates that a particular topic is being widely discussed. This indeed was the case with the word “McAlpine” that day.
Equally, Bercow did not specifically suggest Lord McAlpine to be a paeodophile (which many others did) and she has since apologised both by Twitter and letter.
The courts may well take an opposing view but truly, we’d suggest, this is a case that should never have reached the courtroom.
She reminds me of Margaret Trudeau, the wife of Pierre Trudeau who was a Canadian Prime Minister in the 1980s. Margaret was a wild child who adored promoting herself at the expense of her husband’s reputation.
I believe it is right that it goes to the courtroom. It was an example of appalling journalism where an innocent man’s reputation, attached to the worst type of sexual misdemeanour, was scrutinised publicly. Anyone in the public eye who is in some way party in multiplying the ‘news’ through the Twitter effect, should be taught a hard lesson. Whichever way the court’s decision goes, Silly Sally will be more careful in future.
Mona, I was sent this quote from Lord McAlpine’s own book, The New Machiavelli: The Art of Politics in Business:
“Another option is for the businessperson to learn the art of dealing with the media, using all the tricks that go with that trade – such as the false defeat: when a person seems to lose, in order to gain public sympathy, or the false triumph: where a person seems to win in order to appear strong – thus giving credibility to any number of dubious propositions that person may wish to make in the future. Neither of these ploys are examples of the use of true facts, rather of false facts given to the media to chew on, much as a dog chews on a bone. Another useful ploy is the false accusation. First, create a situation where you are wrongly accused. Then, at a convenient moment, arrange for the false accusation to be shown to be false beyond all doubt. Those who have made accusations against both the company and its management become discredited. Further accusations will then be treated with great suspicion. Always remember that people’s memories are very frail, remembering only both the high spots and the lows of a person’s career, and then seldom remembering accurately. People believe in the facts that it suits them to believe.”
It does not relate to this case in any way at all (as it is about business dealings) but it is well worth reading nevertheless. It is something that we should all think about.
As regards what you say about Mrs Bercow, I beg to differ. She simply commented on a “trending” topic. The courts may or may not agree with her but I think it will be ludicrous if they don’t.
I do realise that. It will be interesting to see the court’s reaction as it comes to grips with Twitter and if a precedence it set.
Since when were the judiciary able to read minds? Mrs Bercow simply stated on a trending topic and at no time stated that McAlpine was a paedophile. McAlpine is chancing his arm, he should scuttle off with his BBC/ITV gains. [EDITED]
Lady Chatterley’s Lover by D.H. Lawerence was always a best seller. Huge box-office success for the film.
It proves that smut and sleaze does pay well. Sally Bercow reflects the gradual deterioration of standards and good taste of the public figures that represent us. I can see where Matthew Steeples is coming from, and agree.
I don’t take Sally Bercow seriously, neither should Lord McAlpine.
Lord McAlpine is right to take this woman on. She reminds me of your friend Lady Meyer, Matthew. All talk. I hope he wins.
Right to take her on? With respect, a ridiculous comment.
For what and what possible further vindication could he hope to achieve?
I have written extensively on this particularly case and a win for McAlpine would contradict all the current guidance and precedants when dealing with libel claims. As others have pointed out, context is important. However, if we accept what Sally Bercow said was a libel, what additional compensation can possibly be awarded? What is the point in continuing when he has been vindicated?
Further – her involvement was tiny when you consider the previous information on the internet, the BBC mess up and all those on Twitter who picked up on the subject and said far more. Then McAlpine has received £310,000 in compensation already. As judges have noted previously you cannot take one supposed tweet out of all proportion and context and treat it as if it was the sole cause of the damage. Otherwise there is a massive risk of over-compensation which cannot be allowed to happen. What happens if he decides to take on Alan Davies and all the others? He could be raking in millions, hence why the whole case is ludicrous and I expect a judge to say so.
These are extracts from Smith V ADVFN PLC a libel case involving multiple defendants. The judge’s observations which show that amongst other reasons and in view of what I said above, McAlpine winning compensation would only result if the present judge ignored his own guidance and that of fellow judges.
10• At the very least it is possible to conclude, even at this stage, that the strategy of “divide and rule” is inappropriate, as I have explained to Mr Smith this morning and as he is already aware. This is especially so in libel proceedings because, if they are appropriate at all, damages can only be assessed in the round (that is in the context of the overall picture). In particular, any distress and hurt feelings suffered by Mr Smith would have to be compensated by reference to the totality of the publications and not on the artificial basis of the sum total of the impact upon his feelings by one individual publication; otherwise there would, as I think he understands, obviously be a significant risk of overcompensation.
73. First, there was the potential risk of over-compensation (to which I had referred on 12 May). It was clearly necessary for any award of damages to be made in the context of all the claims (including those settled last year). It would not be right to compensate for either injury to reputation or for hurt feelings as though any individual’s publication(s) had been the sole cause
The Paper Chase was an American novel by John Jay Osborn, Jr. It follows the lives of law student James T. Hart and his classmates at Harvard Law School. Professor Charles Kingsfield the world’s leading authority in contract law, stated in the book that “no one should be allowed to profit from the law”.
Lord McAlpine seems determined to milk it, for all it is worth. Welcome to Britain’s compensation culture.
In reference to what Chaim Paddaman wrote, I believe Lord MacAlpine is asking the libellous Libellees (?!?) to perform community service to the tune of the damages awarded against him. So he’s not profiting. But hey, if someone libelled me and I’d won the case, I’d certainly pocket the proceeds and head off pdq to Knightsbridge
Monima
Whether any damages he collects is for charity – or agreements reached for a good cause is not really an excuse for the way this litigation has been conducted. If I was a charity I would not accept money obtained from undue pressure. It has been trial conducted in the media and picking off defendants one by one without any regard for the merits or the risk of over-compensation.
I would be amazed if rules were not broken as most lawyers ignore these rules.
As for unfair tactics against multiple defendants and what the judiciary think of charitable donations from the proceeds of legal bullying, here are some more observations from Justice Eady – top defamation judge, recently retired now I think.
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2008/1797.html&query=smith+and+v+and+advfn&method=boolean
9. If there is a genuine desire for vindication over any significant defamatory allegation, it is reasonable to suppose that this objective could generally be achieved by a more targeted strategy. Inevitably, one is left with the impression that Mr Smith and his solicitors are determined, as I described it on 12 May, to pick off the potential defendants one by one and to make it clear to them that it would be cheaper to apologise and pay up at an early stage.
23.One might well ask, in the language adopted by the Court of Appeal in Jameel, whether “the game is worth the candle”. If litigation is being used to exert pressure on people to pay money (whether for charity or otherwise) or to apologise without any regard to the overall merits, solely with a view to avoiding spending money without hope of recovery, then the court needs to ensure that its processes are not being abused.
[EDITED]
Not wishing to make a huge issue about the editing of the above post – but the removal of the opinion I expressed (which was based on sound research and guidance which perhaps I should have included also) does take something away from the post. Do not worry about reinstating the post however – that is not important right now but this does raise some very interesting points. Readers and bloggers who are probably scared to express opinions on this subject might be re-assured if they read on.
Anyway – perhaps for future reference, readers and blog owners should take heed of these observations by the same judge – (see below). Yes – there is a paragraph in this judgement to fit most occasions it seems! But more seriously – perhaps we can all learn something here about posts and expressions of opinions on blog sites.
In the first – para 27 – the judge is basically saying that reputation is determined by what that person has done and how he has behaved – and not the opinions expressed about it or the accompanying commentary. So my comment which was edited was based on a fact – i.e the way the solictor has conducted the McAlpine claims. This was then accompanied by an opinion criticising that conduct and suggesting that some rules were broken. A reader will determine reputation by what the solicitor has done and is known to have done (and we all know this from the media) – rather than what I or others are saying about it. If you actually think about it, does me suggesting that rules might have been broken change your opinion on the conduct of this litigation? You might learn about rules which you never knew existed but it would not change your overall opinion would it?.
These are extremely important points when dealing with fast moving blog sites and bulletin boards and which should make people think twice before reaching for the moderaters button.
Finally, if the moderator is not convinced with para 27 or he thinks my opinion might be perceived as ‘wrong’ then paragraph 107 of the same judgement will reassure beyond all doubt. Also see below.
27.Rather laboriously, in his particulars of claim against Mr Love, Mr Smith attempts to define “appalling” by reference to “someone who acted in a manner that causes dismay, horror or revulsion to others”. Yet the remarks on the bulletin board by these multiple defendants were not simply made in a vacuum. Any reader would know the context and recognise the conduct on Mr Smith ‘s part which was being characterised as “appalling” and be able to form his or own view of it. This means that Mr Smith ‘s reputation in the eyes of such a person is likely to depend primarily on what he himself has done, and is known to have done, rather than on what others are saying about it.
107. I referred to common themes in the postings, such as that of “bullying” other users and making “threatening demands” for money. That is classic fair comment territory and, in the light of the modern authorities, it is inconceivable that a jury would find any of those who expressed such a view “malicious” – let alone all of them. Opinions may be expressed in exaggerated and strident terms; the only requirement is that they be honestly held. It is fanciful to suppose that any of these people did not believe what they were saying. Even if they reached their conclusions in haste, or on incomplete information, or irrationally, the defence would still avail them. It would be wasteful to let proceedings go forward merely on the footing of a series of formulaic assertions to the effect that the individual concerned did not honestly believe what he was saying. There is accordingly no realistic prospect of any such claims achieving the only legitimate goal of vindicating reputation.
You must check this Loverat, but I don’t think it is a ‘charitable donation’ but ‘perform community service’ to the tune of the damages, as that it what I read in the press. This means, the Libellor cleaning public loos in his or her community and other rather unpleasant chores. If you recall, Naomi Campbell had to do the same in New York.
Since we are talking about the Judiciary, on another topic completely (if the Editor allows) why hasn’t the press identified the Human Rights Defence for Abu Qatada ? The prosecution and defence counsel is always known in a criminal trial. I asked this on Twitter yesterday. Are they afraid of reprisals ? I should jolly well think so !
Monima
I think McAlpine has claimed that some money was going to Children in Need and he reached one agreement with a journalist to do some charity work.
Anyway this was the judgement on the preliminary issue (issued today) to do with the directions of the judge. The judge ruled that the case should be heard over two hearings – one to decide meaning and one to decide damages.
http://www.bailii.org/ew/cases/EWHC/QB/2013/981.html
I do not know very much at all about court processes etc but one view is that the judge is simply doing what is logical in having separate hearings for both points. Some may interpret this as the judge being more inclined to indulge this claim – at least for the time being. Anyway I think it is too early to draw any conclusions from what is written in the judgement.
All I will say is that cases that have gone on to be declared hopeless have been through the same process and we have to respect that.
Of course, my own view as a member of the public will always be that cases like this should be dismissed straight away and it loses on damages so a hearing on meaning is pointless. The guidance and precedants set by the Head of the Jury list (Justice Eady) about over-compensation and multiple defendants would suggest any final decision contradicting that and in favour of McAlpine would be a massive U Turn. Even awarding a small sum would set a dangerous new precedent and confirm to some that libel is a rich man’s law.
My apologies to G Castle for that last reference to her post. I feel quite strongly about the way this litigation is proceeding. It reminds me of many other injustices associated with libel law,
I mentioned the over-compensation argument which I think is very strong and if past cases are anything to go by, should result in the case being dismissed as an abuse of process – regardless of any unrealistic or unreasonable findings on meaning of the tweet.
Anyway on the subject of its meaning and context this (see below) was another observation by the judge in the above case. I am not a lawyer but I suspect there will be a great deal of legalistic over-analysis and possibly over-complication of the meaning of Sally Bercow’s post. Common sense interpretation amongst lawyers is usually is absent (hence why in 2010 libel defendants won 85% of reported cases) but judges nowadays are better at applying common sense to postings and considering context.
The point I would make about the tweet itself is whilst it was not an opinion, it was not dishonest and was based on events which had happened before. Thought would have to be given to the origin of all this – e.g. the original publications going back years, the police and the BBC. Based on those factors and events, Twitter users reached a conclusion which as it turned out was wrong. As well as the fact that this whole thing would have taken more or less the same course with or without Sally Bercow’s involvement (hence the argument about totality of publications and damages received already) this paragraph may also be relevant.
107. Opinions may be expressed in exaggerated and strident terms; the only requirement is that they be honestly held. It is fanciful to suppose that any of these people did not believe what they were saying. Even if they reached their conclusions in haste, or on incomplete information, or irrationally, the defence would still avail them. It would be wasteful to let proceedings go forward merely on the footing of a series of formulaic assertions to the effect that the individual concerned did not honestly believe what he was saying. There is accordingly no realistic prospect of any such claims achieving the only legitimate goal of vindicating reputation.