Friday 24 May 2013

Sally Bercow at the High Court

Was I alone not surprised by today's verdict at the high court? No. Britain's libel laws are notoriously wide and all-encompassing. You could be forgiven for thinking that elasticity is not entirely accidental, seeing as our courts are places where tremendous sums can be won or lost. Then there's the small matter of libel law firms making a killing from the wealthy people who engage their services too. But of course, it wouldn't be the done thing to suggest that there may be a link between the two *innocent face*.

Anyway, there's a couple of quick points I want to make about this.

First, libel in general. Undoubtedly libel laws as they currently stand do have a chilling effect on free speech. The Defamation Bill is a step in the right direction, but does not go far enough. But at the same time, and strangely for a socialist, I do not reject the redress available through libel action completely. Gross defamation of character in my opinion should be actionable. Slinging around vile slurs is not acceptable, and penalties enforceable through civil action ensures the right to free speech is balanced by taking responsibility for what one has to say.

Second, and despite that qualification, something about Lord McAlpine's action against Sally Bercow does not sit right with me. As a Twitter celebrity, posting that tweet at the height of last Autumn's paedophile panic was a stupid thing to do. Whatever one thinks of the law, it wouldn't take 30 seconds for someone as internet-savvy as Sally to find out that suggestion by implication is as defamatory as explicitly libelling someone. And I have no doubt that Lord McAlpine was grossly offended and fearful for his reputation.

But I cannot help thinking that had it been someone other than Sally Bercow, the woman who in many conservatives' eyes has denigrated the quiet dignity of being the Speaker's helpmeet, then this libel action would not have happened.


Anonymous said...

Except that isn't the process Phil. Under defamation law litigation can be avoided by an offer of amends i.e. apology. I've not been following this particular case but from what I know of U.K. libel law the Bercow camp must have been recalcitrant for matters to progress this far. Unless of course McAlpine has not been advised of the significance of amends by his legal team. It is not uncommon for the legal profession to mislead their clients into believing they have winnable cases when they do not. Solicitors do what they say on the tin. Solicit.

Anonymous said...

You have every right to be surprised. The judgement ignores clear precedent and legal guidance concerning multiple libel cases and the totality of publications and substantial compensation received to date (and indeed that offered by Sally Bercow)

This all started going wrong when the judge ordered separate hearings – one for meaning and damages. That ensured that there was an over emphasis on meaning and nothing at all on the wider context.

It seems to me that the litigation was effectively put into a strait jacket from the start and meant good arguments were never heard or considered.

By the way in response to the above comments, Sally Bercow had every right to test the law and particularly to ensure the judge did not allow McAlpine to seek compensation on a case by case basis. All tweets/posts/broadcasts have to be considered together and as a whole - and not as though one individual has caused all the damage. Unfortunately the judge forgot his own guidance and the overall outcome is woefully poor even if one can understand the
observations on meaning which should only have been a small part of all this.

Sally Bercow has effectively been stitched up by the legal system and the judge has given the green light to a new round of 'speculative invoicing' against members of the public. McAlpine can now demand whatever he pleases from any remaining actions and over-compensate himself yet more.

Anonymous said...

Re Anonymous #1 Sally made two offers to settle out of court within days of McAlpine launching legal action. Both were rejected by the noble Lord because they did not admit libel, but contained both an apology and financial offer. It was clear that he was determined to have his day in court.

One other point, am I the only one that is disturbed by the fact that a judge can hear a case when he has ties, albeit slightly tenuous, to the plaintiff? Tugendhat's brother was a Deputy Treasurer of the Conservative Party when McAlpine was Treasurer; what, under English law, constitutes a conflict of interest?

Phil said...

First Anon, my impression of the case was that McAlpine has instructed his lawyers to go hard and heavy on Bercow and anyone else who libelled him on Twitter. In fact, there was a big hoohah about the initial announcement. I think second Anon makes the point well.

Phil said...

Well noted, Anon, well noted ...

Jim Jepps said...

Well she was guilty because she deliberately libeled someone for fun and then tried to pretend that it was not illegal because the accusation of being serial peadophile was only implied. So I'm not crying any tears about this verdict.

It's interesting that while she did issue a formal apology quite quickly (from memory) she was also tweeting and saying that she hadn't done anything wrong and was public about being unrepentant. That's why it has come to this.

So as far as I'm concerned that's twice that she tried to absolve her own responsibility on technicalities, and I don't respect that or her for it.

I didn't understand this; "But I cannot help thinking that had it been someone other than Sally Bercow, the woman who in many conservatives' eyes has denigrated the quiet dignity of being the Speaker's helpmeet, then this libel action would not have happened."

monbiot's having to do three years of charity work and others have paid up wodges of dough over this affair so it is no just her. I think you're getting this back to front.

She tweeted what she tweeted because he was a political opponent and therefore fair game in her eyes to gloat over his personal misery. It was the worst sort of political tribalism.

It's her moral failings that led her to court, not his (although she felt she was too important to actually attend an so will have to go to an especially arranged session for her apology)

Phil said...

Perhaps, Jim. I take your point on the tribalism. But it's just a feeling I have ...

Matt W(ardman) said...

I mainly agree with Jim on this one, which is a first.

I have no idea why Bercow chose not to settle - or at least pretended to apologise then undermined her apology by her public statements (shades of Russell Brand and Andrew Sachs). Perhaps she needed a good lawyer.

My view as to why Bercow received her comeuppance in this case is not because this is the first time she has defamed someone on Twitter, but because she did it in a way that could not be ignored.

The line Bercow crossed was not especially in circulating defamation - low level defamatory gossip is just her normal stock in trade, and is the normal stock in trade of political sneerers everywhere who call themselves "mischevious" in self-justification - but that on this occasion it was a defamation that was hard to ignore.

Bercow called George Osborne "mental" back in 2010, soon after she started, and there was no shortage of similar stuff. That is water off a duck's back - leaving aside the PC-language lot.

Spreading an allegation that an entirely innocent person is a paedophile is surely on a different scale.

Was McAlpine taking the opportunity to close down a high-profile gossip and thorn in the side of his party?

No idea, but if it was partisan politics perhaps the Tories would be better off with her exactly where she was.