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Archive for May, 2013

McAlpine v. Bercow and a New Era of ‘Twitter Chill’

Antonin I. Pribetic, B.A. (Hons.), J.D., LL.M., FCIArb.
Litigation Counsel
Steinberg Morton Hope & Israel LLP, Canada

Author:  the Trial Warrior blog

The decision of Mr Justice Tugendhat in McAlpine v Bercow [2013] EWHC 1342 (QB) (24 May 2013) [“McAlpine”]  is a stern admonition to Twitter users about the perils of practising comedy without a license.

Seriously, in my view, the UK court’s  judgment will have a chilling effect on free speech on Twitter and will likely devolve into an era of social media self-censorship for Twitter users, particularly in the UK. A form of libel chill, or, perhaps “Twitter Chill”.

It also highlights the legal chasm that exists between the American and UK judicial approaches to balancing freedom of expression and protecting reputation. The decision also raises the spectre of a “popularity metric” to determine whether the alleged maker or republisher of the defamatory tweet has gazillions of followers or is just some shlub with 4 followers, three of which are porn bots.

I wrote about the scandal involving British peer, Lord McAlpine who threatened to sue the BBC, ITV and thousands of Twitter users over false accusations of pedophilia in a post entitled: Lord McAlpine and Twitter Libel: Does failing to sue when a libel is first published raise a defence of waiver, estoppel or acquiescence? In the post I posited:

“Recall that Lord McAlpine also has threatened a libel action against anyone who tweeted or retweeted (RT’ed) the BBC Newsnight program, ITV broadcast, or the tweets by British celebrities such as Sally Bercow, the wife of the Speaker of the Commons, and George Monbiot, a columnist for the Guardian.

There are stories circulating on various blogs and on Twitter referring to similar, if not identical, allegations made against Lord McAlpine back in the 90’s by a now defunct British magazine and a well-known British writer and public speaker with a penchant for conspiracy theories. [note: I am deliberately not providing links to the articles in fairness to my UK readers. If you really want to know more, then Google it yourself].

Some have asked, perhaps rhetorically, why Lord McAlpine did not sue anyone before when these allegations, now established to be false, were made?

My question is: Does failing to sue when a libel is first published raise a defence of waiver, estoppel or acquiescence? “ 

Reading Mr. Justice Tugendhut’s decision, it is obvious no one bothered to address my brilliant insights.

In any event, the upshot of the McAlpine decision is that innuendo is sufficient to attract liability for defamatory statements, even where the individual does not link or endorse the original source of the defamatory statements.

In this case, Tugendhut J. found that many of Bercow’s Twitter followers shared her interest in current affairs and would have been familiar with the Newsnight story.

The learned judge further held that Bercow’s inclusion of the phrase *innocent face* told readers that she was being “insincere and ironical”; she was not asking a simple question as argued by her counsel. Accordingly, the UK court held that it was reasonable to infer that she meant Lord McAlpine was “trending because he fits the description of the unnamed abuser”.

Therefore, by process of implication, there was repetition of the accusations of sexual abuse broadcast on Newsnight. Following the UK’s ”repetition rule”,  Bercow, admittedly a celebrity of some sort, is to be treated as if she had made the original allegations herself, but with the addition of Lord McAlpine’s name.

Aye, there’s the rub which rubs me the wrong way.

With all due respect, the learned judge’s logic is tortuous. It attempts to connect dots on a map to a treasure buried under a sea of improbability.

Tugendhut J. surmises,

84. In my judgment the reasonable reader would understand the words “innocent face” as being insincere and ironical. There is no sensible reason for including those words in the Tweet if they are to be taken as meaning that the Defendant simply wants to know the answer to a factual question.

Ask yourself this question: what would have happened if Bercow did not add the phrase “innocent face”?

Frankly, I’ve been on Twitter for over 4 years and I never got the “facial innocence” memo and would not have made the connection. That said, the following sums up the UK court’s analysis :

***1.  Newspaper incorrectly identifies a public figure as a pedophile ;

2. Thousands of individuals post links to the story on blogs, Twitter and who knows where else;

3. The public figure’s name starts trending on Twitter (presumably in the UK only, but for argument’s sake, let’s say it trends worldwide);

4. Thousands of private individuals, many anonymous, follow a celebrity and see his or her tweets and are compelled to follow the trail of bread crumbs. Actually, all they have to do is to do a search of the Twitter hashtag;

5. Since the celebrity’s Twitter reach is extensive due to a large number of followers, the result is that the celebrity is liable for republication of the libel.

Does anyone else see the gap in logic here? Whether Bercow has 65,000 followers or 6,500,000 or only 6 followers does not proveanyone actually read her tweets or further investigated the story.

Bercow did not say: “Lord McAlpine is a pedophile”, which is, of course, a falsehood and unequivocally defamatory.

She also did not say: “Dear Followers, here is a link to the reports of the Newsnight story.”

The BBC UK reports:

In a statement, Mrs Bercow responded: “I will accept the ruling as the end of the matter. I remain sorry for the distress I have caused Lord McAlpine and I repeat my apologies.

“I did not tweet this with malice, and I did not intend to libel Lord McAlpine. I was being conversational and mischievous, as was so often my style on Twitter.”

She went on: “I very much regret my tweet, and I promptly apologised publicly and privately to Lord McAlpine for the distress I caused him. I also made two offers of compensation.

“Lord McAlpine issued proceedings and the last few months have been a nightmare. I am sure he has found it as stressful as I have. Litigation is not a pleasant experience for anyone.”

Mrs Bercow said she had learned her lesson “the hard way”, adding that the ruling should be seen as “a warning to all social media users” because comments could sometimes be “held to be seriously defamatory, even when you do not intend them to be defamatory and do not make any express accusation”.

The tort of defamation, a strict liability tort in common law, deals with recovery for reputational harm, without need to prove the defendant’s fault. As such, damages are presumed. It appears that the impugned tweet was not libel per se, but rather libel per quod, which requires extrinsic evidence such as inducement or innuendo.

Ultimately, Bercow’s tweet was ill-advised, but to conclude that anyone who read the tweet was induced into believing what Twitter itself, through its trending algorithm, perceived as “popular” or “informative” or “newsworthy” implies that trending somehow cloaks the content as “true”.  Of course, it’s not. It’s just Twitter.

The UK’s  piecemeal, haphazard approach to libel reform notwithstanding, unless free speech is constitutionalized to reflect a semblance of the U.S. First Amendment, then many are 140 characters away from an expensive libel claim lawsuit.  Oh yeah, I forgot. Britain does not have a written constitution. Nevermind.

Well, how about imposing an actual malice requirement for public officials and public figures?  Most are familiar with Supreme Court’s 1964 decision of New York Times v. Sullivan376 U.S. 254 (1964), which held that a public official could only prevail in a defamation action if the public official proves that the defendant either knew that the statement was false or recklessly disregarded whether the communication was false, a fault standard known as “actual malice.” Without constitutional constraints, free speech is an illusion. I sympathize with Lord McAlpine. The false accusation was egregious. However, he has settled with a number of large media outlets and the subsequent coverage has repaired any damage, however, significant, albeit transitory.

In the end, Twitter is ephemeral. If you don’t believe me, just try to search for one of your tweets from a few months ago. Good luck with that. In the meantime, how to best strike a fair balance between freedom of speech and protection of reputation remains elusive. The McAlpine decision adds nothing to the free speech/reputation calculus.

As a postscript, the Birmingham Post reports that Bercow has settled with Lord McAlpine, however, “The amount of damages was not disclosed”.

Corrigendum:

As pointed out by Jon Baines on the Twitter: @bainesy1969:

Twitter   bainesy1969   APribetic You say  Newspaper ...

Hugh Tomlinson, Q.C. over at Inforrm’s Blog adds:

In the circumstances, a reader who knew the background – the “Newsnight” broadcast, the media reports and Lord McAlpine’s status as a “Conservative politician from the Thatcher years” – might well have inferred that the Tweet meant: “Lord McAlpine is trending on Twitter because he is the child abuser is the subject of the Newsnight report“.  In other words, such a reader might well have understood the words as conveying a serious defamatory imputation.

It difficult to see how, in this case, a reader of the Tweet who had, for example, paid no attention to the media between 2 and 4 November 2012 could possibly have understood the tweet as making a defamatory allegation against the claimant.  The question of the absence of an “alternative explanation” mentioned by the Judge ([85]) cannot assist on this point: the reader who had paid no attention to the media would simply not understand what the tweet was about.  It would doubtless come across as another, unfathomable, twitter “in-joke”.”

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Dear Reader,

Our Lord Chancellor and Secretary of State for Justice, Basil Grayling,  continues to provide food for thought for serious commentators and fodder for  satirists alike with his ill conceived plan to destroy legal aid and the criminal justice  system with it.  G4S, Serco, Tesco, Stobart et al – if Grayling’s plans go through  – will probably kill off the high street solicitor specialising in Crime, reduce the pool of lawyers available to the public (You won’t be able to choose your solicitor anyway and the criminal bar will be significantly reduced in number) and….. well let me leave the detail to two experienced barristers who express their views robustly in recent podcasts with me.

Do listen if you have the time.  Jerry Hayes, former Tory politician is very direct in his criticism, as is Michael Turner QC – but Jerry, inevitably,  adds a sardonic touch to the commentary- which certainly amused me.

Podcast with Jerry Hayes

Podcast with Michael Turner QC, Chairman of the Criminal Bar: Tour Report #21:  Podcast with Michael Turner QC, Chairman of The Criminal Bar Association,  on the legal aid reforms

And lawyer or non-lawyer, if you would like to sign the petitionyou may do so here

And… you can keep up to date with developments by following @TheCriminalBar on twitter

The privatisation of ‘Justice’ by the back door seems to be the order of Tory play and, thus far, the ‘blockers’on the Lib-Dems don’t seem to be that interested – but, apparently, opposition to Grayling’s plans is now Labour Party policy.

@TheCriminalBar: Ex LJ with 40+ yrs experience of Legal System says reforms a disaster Ambitious Minister with 0 yrs says No #GoFigure http://www.express.co.uk/news/uk/402682/Justice-Secretary-Chris-Grayling-defends-legal-aid-reforms …

I suspect that few lawyers with experience of libel law will have been taken by surprise by Tugendhat J’s judgment in the Sally Bercow Tweet case (judgment here) – Joshua Rozenberg covered the matterSally Bercow learns the social media rules the hard way in McAlpine case “Twitter users are learning what a dangerous weapon they have at their fingertips, as Sally Bercow’s 46-character tweet shows.”

David Allen Green, writing on his Jack of Kent blog notes Sally Bercow’s statement after the judgment was handed down.

Barbara Ellen writes in The Observer: Twitter at its worst is not Bercow, but the braying mob – The Twitter villains are the bullies who feel scant responsibility and a lack of interest in fairness

Patrick Strudwick forecasts doom: Sally Bercow’s Lord McAlpine libel: Twitter is over. O.V.E.R. – “The great modern sandpit will now have to rein it in, tamed by knowledge that the whiff of a suggestion could land you in court”

And… The Tweeting Lawyer has a view:  Lessons from #McAlpine v #Bercow

Finally for today ( I will return on the morrow…perhaps…hopefully etc etc)… from Legal Cheek – a prolix and rather pompous statement from a young pupil barrister.  (Are we sure that this is not an Alex ‘spoof’? Certainly worthy of output from the Muttley Dastardly LLP *Psyops* unit. )

‘THE TIDE MAY FLOOD LAW FIRMS, BUT I REMAIN UNCONVINCED THAT IT WILL ENGULF THE BAR’

Legal Cheek reports…

Enjoy the sun and the bank holiday

Best, as always

Charon

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Today I am talking with Jerry Hayes a former Tory MP and practising barrister about the purpose and likely impact of the cuts to legal aid being proposed by Chris Grayling, the Lord Chancellor and Secretary of State for Justice.

Much has been written about the legal reforms in the dead tree press and the law blogs. (Patrick Torsney has a comprehensive listing of blogs written by lawyers and others from the legal blogging community. )

We discuss the need for the protest by lawyers outside parliament and the likely impact on society in terms of access to justice.  It is not about ‘lawyer fatcattery’ – the proposals being put forward by the Lord Chancellor will impact on many in our society in terms of a fair trial and access to good legal representation – and they will, directly or indirectly, affect us all – not least in terms of the ‘Rule of Law’ so lovingly used by the prime minister, foreign secretary and other senior ministers when promoting Britain overseas or lecturing despotic governments abroad.

Jerry Hayes is a former Tory MP who knows the back benches of the Tory party and its workings well.  Jerry is also a practising barrister.  He is not shy in putting his robust views on Chris Grayling’s reforms – nor is he shy in coming forward to comment sardonically.

Please listen to the podcast – lawyer or non-lawyer.   There is a serious message here – but there is also fairly ribald ‘analysis’.  It  was a most enjoyable podcast to do.

Listen to the podcast

iTunes version of the podcast

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***

PLEASE SIGN the petition so that Mr Grayling has to answer before Parliament for his ill conceived reform plans.

>>>>Sign the petition – please, if you haven’t already.

The verdict is in: FailingGrayling LC guilty of attempted murder of Legal Aid

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Hat Tip to Catherine Baksi ‏@legalhackette “Over 500 find Christopher Grayling guilty of attempted murder of legal aid at #saveukjustice demo”

Catherine Baksi interviewed the Lord Chancellor and Secretary of State for Justice – interesting and well worth a read.  

The demonstration and #SaveUKJustice campaign on Twitter is not about ‘fatcat lawyers’ – indeed, many criminal lawyers make a very modest living by providing representation and advice in the field of criminal law – it is about access to justice, the right to choose a solicitor, the right to a fair trial, the right to be treated fairly by the state.

Many bloggers have written on the subject.  Patrick Torsney has a comprehensive listing of blogs written by lawyers and others from the legal blogging community. 

The Guardian was quick to report: Lawyers protest outside parliament against legal aid cuts
Hundreds, some wearing wigs and gowns, demonstrate against justice secretary’s plans, which they say undermine UK justice

The London Criminal Courts Solicitors Association (LCCSA) provides pictures of the event on their Facebook page

I did a podcast interview with Michael Turner QC recently: Tour Report #21:  Podcast with Michael Turner QC, Chairman of The Criminal Bar Association,  on the legal aid reforms

The demonstration generated a great many tweets and you may follow them here

I provide a few…

Jules Carey ‏@Jules_Carey : This reminded of Tony Hancock sketch: “Does Magna Carta mean nothing to you? Did she die in vain?” #SaveUKJustice
Northpod Law ‏@northpodlaw : Client choice remarks from Grayling described as enshrining mediocrity. #justiceforsale #saveUKjustice
deffostepho ‏@deffostepho :  Room full of lawyers and they’re all angry. #saveukjustice pic.twitter.com/hcQCPU9eNK
The CBA ‏@TheCriminalBar : We are turning public opinion. 70% public fear losing #legalaid

I am doing a podcast interview with ex-MP and barrister Jerry Hayes (pictured below) about the demonstration – and the need for it – on Friday.  Jerry is a good speaker and will, I feel sure, be robust and direct in expressing his views!

The reforms to legal aid will impact on the legal profession, but as wiser heads than mine have observed – lawyers can get other jobs.  Will a person in need be able to afford representation, let alone get a good lawyer if the good lawyers are forced to move away from practice within the field of criminal law?

And here is a storify of #SaveUKJustice tweets at the demonstration this morning from  Shoaib M Khan ‏@UK_HumanRights3m

PLEASE SIGN the petition so that Mr Grayling has to answer before Parliament for his ill conceived reform plans.

>>>>Sign the petition – please, if you haven’t already.

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Legal Salary Survey

Legal Salary Survey 2013

An interesting infographic on salaries from Sellick Partnership

 

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What do you do if you’ve worked with asbestos in the past?
Paul Rooney Legal, Solicitors

Asbestos is the greatest cause of work related deaths in the UK, and work related exposure is the most common source of contact with asbestos. For this reason, it’s vital to be aware of the dangers of exposure and the steps required following diagnosis of an asbestos related disease.

Asbestos exposure can occur in various places of work, including:

  • an asbestos mine or asbestos processing plant
  • working in a high-risk occupational surroundings, such as construction, painting and decorating or automotive industries
  • serving on military facilities, including ships, where asbestos has been used in construction

It’s important to note that it generally takes recurrent, heavy exposure to asbestos to be at risk. Working in a building where asbestos was used in its construction, but is suitably sealed, is not likely to result in contracting an asbestos related disease, as not a high enough dose of asbestos will be inhaled.

In the UK, the greatest risk of asbestos related lung disease arises from insulation work, although some work activities are more highly associated with asbestos exposure. For instance, the use of power drills and work that involves the physical disturbance of asbestos is more likely to create a significant concentration of asbestos fibres in the air. DIY activities can also cause exposure to asbestos.

Mesothelioma, a form of lung cancer, develops from triggered biological changes in the body after asbestos fibres have accumulated. As it can take some 40 years or more to manifest, new cases are expected to rise and experts believe that by 2050, there will be 90,000 deaths attributed to mesothelioma in the UK.

Diagnosis of mesothelioma is difficult, but symptoms include breathlessness, chest pains, weight loss, fatigue and persistent coughing. While these symptoms are not always signs of lung cancer, it is advisable to consult your GP if you have them.

The outlook for mesothelioma is poor, often because of the advanced stage it is at when diagnosed. According to the NHS, most people with the condition will die within three years.

In 2010, there were 2,347 deaths from mesothelioma in the UK. Asbestosis is not as common, causing 189 deaths in 2009, while 1,015 people with the condition were assessed for industrial injuries disability benefit in 2010.

Cases of asbestos related diseases have also emerged from living near asbestos factories or washing the clothes of a loved one who works with asbestos. High risk areas are shipyards, railway engineering and factories.

If you believe you have been exposed to asbestos, it is strongly recommended you speak to your GP as soon as possible. If you know, make sure you tell them the dates of possible exposure, the type and likely amount of asbestos you’ve been exposed to.

Understandably, if you are diagnosed with an asbestos related disease, you will be worried and scared. You will want the best medical care and you might be entitled to compensation which could help with your medical care.

If you are concerned that you may have been exposed to asbestos, you can contact the British Lung Foundation Helpline on 03000 030 555.

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The need to move away from our John Major and Del Boy image
Richard Powell, Solicitor

If you were to ask a member of the public what news stories they remember from the past week, what would they think about?  Chances are, it’ll be about Fergie’s retirement, the three women rescued from captivity in Ohio or the latest allegations against April Jones’ supposed killer.

What I can guarantee with pretty much absolute certainty is that nobody, unless they are a lawyer or a barrister, will be thinking about the reduction of fixed fees in road traffic accident personal injury claims.  There will be nobody who’s turned to a friend and exclaim “gosh, I wonder what this means when combined with the new legal Bill that came into effect in April.”

Nobody will be thinking this outside the legal profession because, quite simply, it isn’t interesting enough to be in the mainstream news.  I wish the truth was less brutal, but there it is.  To anyone outside of the industry, Personal Injury is seen at once as the John Major and the Del Boy Trotter of the legal world.  We are either grey and boring, or we are boorish and brash, with none of the lovability of the latter and about as much charisma as the former.

What gets bums on seats in news terms is not how your access to justice may be affected when lawyers in their droves can’t handle your personal injury claim and you have to go it alone (until a spectacularly massive scandal of this nature breaks).  It is not even what will happen when hundreds of lawyers and ancillary staff are put out on the dole because of the combined effects of the LASPO Bill, fixed fee reforms or when a form of Grayling’s whiplash proposals are passed.  It is personal tragedy.  It is outrage.  It is the moral paucity of the politicians elected in by an increasingly apathetic population.  What most people remember about John Major’s time in power is not Black Wednesday, but his affair with Edwina Curry.  The scandal, not the substance.

When one of the biggest shakeups to legal aid came in last month, in the form of the LASPO Bill, a couple of stories came out about the impact the changes would have on Medical Negligence and Family Law cases.  There were no stories about how it would impact on people making personal injury claims and that they’d lose a big proportion of their compensation award paying their lawyer’s fee.  Nothing about the fact that people with claims that are meritorious but not straightforward would probably not get taken on by any lawyer unless said lawyer wanted to run the case at a loss…and as much as Failing Grayling might expect us to do this, some of us do still have bills to pay.  We’re not unlike our clients in that respect.

Even if the small claims limit for road traffic accidents gets raised to £5,000 next year, it is unlikely this will be covered, even though that will effectively end no win, no fee claims in these kinds of cases.

Until the industry starts to be viewed as an interesting, positive force, our stories will forever languish at the bottom of the media pile, going unnoticed and unloved.  If we are to move away from John Major and Del Boy, we need to start making Personal Injury Law appealing to the mainstream.  We need a new celeb comparator now, before it’s too late.  Personally, I’d rather be Daniel Craig, but I’m open to suggestion…

***

About the Author: Richard Powell is a personal injury solicitor at YouClaim, who specialise in compensation claims ranging from clinical negligence to road accidents. Connect with Richard on Google+ or LinkedIn.

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