In praise of Sally Bercow

The wife of the Commons speaker is not normally someone who I’d go out of my way to admire. When she appeared on Celebrity Big Brother she struck me as somewhat vain and publicity-seeking. She’s also a former member of the Oxford University Conservative Association, a group that I’ve been gleefully sarcastic about in the past.

Even so, the news that she’s refused to settle in the matter of Lord McAlpine vs The Internet suggest the actions of someone with a lot of gumption. Libel cases can run into costs of £100,000 without even reaching court. Simply fighting the case (never mind losing it) can financially ruin all but the considerably wealthy.

Over the past month a lot of rubbish has been talked about the supposed evils of Twitter and other new media. This conveniently forgets that the original allegation was made in old media, and on usually-trustworthy Newsnight. The tweeters simply discovered that Newsnight was referring to accusations that had previously circulated, and correctly identified who they were talking about. Unfortunately, the Newsnight report then turned out to be inaccurate.

I can appreciate that Lord McAlpine must have experienced an extremely distressing week, but it’s also important to remember that he was not only generously financially compensated by the BBC and ITV. He was also quickly vindicated. The entire world now knows that Lord McAlpine is not a paedophile.

But more importantly, McAlpine’s subsequent legal action is one that could set a hugely dangerous precedent. That large numbers of people could be pursued and financially ruined for briefly and non-maliciously discussing the TV news. Those who’ve cheered on his pursuit of 10,000 people simply haven’t thought about the consequences.

News about his mass action against tweeters seems to have gone a bit quiet lately, but a few weeks ago these claims were circulated, suggesting that Twitter was simply refusing to hand over personal information to Lord McAlpine’s lawyers without 10,000 court orders, and that overtures to the police were being met with a bland “not a police matter”. I have to add some words of caution here in that these claims are unsourced, and if we should have learned anything recently, it’s not to believe everything that’s tweeted. Even so, it seems hard to imagine that any demand to Twitter that 10,000 sets of personal details be disclosed en masse would be met with anything other than a referral to the reply given in Arkell v Pressdram.

According to news reports, Lord McAlpine is demanding £50,000 and an apology from Sally Bercow. Given that Mrs Bercow has already publicly apologised, it seems likely that the sticking point on settlement may well be the matter of fifty thousand quid. And since, Mrs Bercow has indicated that she’ll meet him in court, what is her defence likely to be?

A quick disclaimer here. I’m not a lawyer, and I’m therefore not qualified to parse the following suggestions. For that reason the next few paragraphs should be treated as speculation and not as legal advice.

This blogger claims to have already obtained some legal opinions on any possible defence.

“The McAlpine case is weak on three grounds. First, the evidence that his reputation was maligned by contemporary tweeting is flakey, given the pre-existence of internet rumours going back a long way; second, suing individual tweeters for £500 could easily be construed by a Judge as a ridiculous not to say greedy valuation to put on one quite possibly neutral enquiry of others; and third, singling out Twitter alone is preposterous in the context of a multivariate world of online social networking. You have Facebook, Linkedin, blog threads and a dozen other equally effective ways of innocently transmitting speculation – up to and including word of mouth gossip in the office. To set a precedent in favour of civil prosecutions against mass opinion and gossip would be ridiculous. Further, we suspect that any higher Court (especially one within the EU’s legal framework) if faced with an appeal against any judgement favouring such a view would overturn the verdict without exception.”

‘The issue of intent is much murkier with regard to mentioning someone’s name on Twitter – especially if Mr X’s guilt or innocence in relation to the media expose was inconclusive at the time. Twitter users were simply commenting in real-time on what they were seeing, without any premeditated malicious intent,’ remarks another online source.

Meanwhile the political journalist Michael Crick has said that there’s another objection which will be raised by Bercow’s lawyers. Even in the worst libel cases, the maximum damages are usually around £220,000. Lord McAlpine has already received £310,000 from the BBC and ITV. Adding another £50,000 to the pile starts to look, well, a bit greedy.

The false accusations against Lord McAlpine were unfortunate, and they do show some of the potential pitfalls of social media. However, they also show the way in which our draconian libel laws can be used as a weapon by the rich and powerful against everyone else. This is why libel reform needs to happen as a matter of urgency. In the meantime, hats off to Sally Bercow for deciding to stand and fight.

 

 

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2 thoughts on “In praise of Sally Bercow

  1. Excellent article. Carter Ruck might also take note of this: Take note of over compensation risk and vindication, conduct of litigation and comments made which are based on honest beliefs or opinions.

    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. It is obviously a relevant question to ask whether someone who had to pay court fees would have thought it proportionate to any legitimate gain to issue 37 sets of proceedings (with apparently more to come). 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. It may be, therefore, that his fees exempt status is being used as a tactical weapon. What is more, one of the common complaints from the litigants in person is that this impression is confirmed by the failure to comply with the defamation protocol by spelling out the exact nature of the complaint before issuing proceedings.

    46. This is a most unsatisfactory state of affairs. Not only, yet again, did Mr Smith and his legal advisers fail to comply with the defamation protocol, but they failed even to identify what he is alleged to have said – over a year later. It is possible that the solicitors, being engaged on a conditional fee agreement, were trying to keep down costs by not exerting themselves beyond the bare minimum. If so, that is a philosophy which does not serve the interests of justice or of fairness to these multiple defendants.

    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.

    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.

  2. Just watched World In Action. The Vexatious Barclays Brothers the feature tonight. Media tycoons.

    Appalling stuff and it seems like they have sued loads of people for libel. Someone on the programme described libel as the rich man’s remedy.

    I think once viewers have got over their shock at their antics and this litigation gets under way, the general public will see all this for what it is. Rich men using their money and power to avoid scrutiny and to stamp out free speech. And the lawyers who sponser these wealthy people to take oppressive action also need to be reigned in. I have already made several compaints in the past to the Solicitors Regulation Authority about the conduct of this type of litigation. Libel brings out the worst in people and the worst in lawyers. Many judgements in the High Court and Solicitors Disciplinary Tribunal findings bear witness to that.

    Time to throw your support behind people who stand up to libel bullies and ambulance chasers.

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