29th July 2022
Later today, at noon in the United Kingdom, the so-called “Wagatha Christie” libel judgment will be handed down by the High Court in London.
As I happen to practise in media law, I thought this may be a useful moment to explain some things about defamation law in general as well about this (for many) entertaining case in particular.
For there is one glaringly obvious feature of this case, whatever the result and regardless of how it has added to the gaiety of the nation.
This is a case that should never have gone to trial.
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On 9 October 2019, the United Kingdom was still a member of the European Union, Boris Johnson had only recently become Prime Minister, nobody had heard of COVID-19, and Coleen Rooney tweeted the following:
This has been a burden in my life for a few years now and finally I have got to the bottom of it…… pic.twitter.com/0YqJAoXuK1
— Coleen Rooney (@ColeenRoo) October 9, 2019
The tweet is still there, and she also published this on Instagram and Facebook.
This tweet followed another one from earlier that year:
It’s happened several times now over the past couple of years. It’s sad to think Someone, who I have accepted to follow me is betraying for either money or to keep a relationship with the press.
— Coleen Rooney (@ColeenRoo) January 27, 2019
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Now, the United Kingdom has left the European Union, Johnson is about to depart as Prime Minister, pandemic lockdowns have come and gone, and we are today finally to find out what, if any, legal liability Rooney has for publishing this statement.
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Rebekah Vardy was not not happy with the statement – which was seen by millions.
The watching public were highly amused, and the impressive detective work set out in the statement led to Rooney being dubbed “Wagatha Christie”.
It appears that Rooney sought to settle the case at this early stage.
According to a news report during the case in The Sun that referred to a witness statement of Rooney:
That May 2020 date may be significant, as it seems to be an offer to settle before the claim was even issued.
If so, that pre-action attempt to settle was unsuccessful.
For on 12 June 2020 Vardy issued a claim in libel against Rooney.
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Libel is a complex and, for some, counter-intuitive area of law.
In a claim for libel, the claimant has to (in general) show two things.
The first is that there was a publication in writing (or another permanent form) to a third party – and here there is no doubt.
And the second is that the publication is defamatory of the claimant, that the average person reading the statement would think badly of the claimant – and here, again, there was no doubt.
Indeed, there was no dispute between the parties that the statement – or what lawyers call “the words complained of” – was defamatory.
And once the claimant has shown these two things then (again in general) the onus switches to the defendant to show that the statement is true, or honest opinion, in the public interest, or was said on a privileged occasion, such as in court or in parliament.
In this way, it is for the defendant to do the expensive spade work of showing that they can lawfully make the allegation, and not for the claimant to disprove the allegation.
So here the burden was on Rooney to show her detective work was sound and her conclusion correct, and not Vardy to show it was unsound.
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But.
What is the meaning of the words complained of?
The meaning is important as it would, in turn, frame what Rooney would have to show to defend this claim.
And so this would be the first matter for a judge to decide – and that was to be in November 2020.
Here it is worth noting that according to the news report above, Rooney sought a second time to settle this case, in October 2020 before that hearing, and she was again unsuccessful.
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You may think that the meaning of the words complained of was obvious.
Oh no.
This was a matter of dispute.
Rooney (and her lawyers) contended that the meaning was that:
“there are reasonable grounds to suspect that the Claimant was responsible for consistently passing on information about the Defendant’s private Instagram posts and stories to The Sun newspaper.”
Here Rooney (and her lawyers) emphasised the references to it being Vardy’s account, rather than Vardy directly.
Vardy (and her lawyers) in turn contended that the words complained of meant:
“that the Claimant has consistently and repeatedly betrayed the Defendant’s trust over several years by leaking the Defendant’s private and personal Instagram posts and stories for publication in the Sun Newspaper including a story about gender selection in Mexico; a story about the Defendant returning to TV; and a story about the basement flooding in the Defendant’s new house.”
Vardy’s contended meaning would be harder for Rooney to prove.
At a preliminary hearing in November 2020, the judge largely agreed with Vardy and held that the meaning of the words complained of was:
“Over a period of years Ms Vardy had regularly and frequently abused her status as a trusted follower of Ms Rooney’s personal Instagram account by secretly informing The Sun newspaper of Ms Rooney’s private posts and stories, thereby making public without Ms Rooney’s permission a great deal of information about Ms Rooney, her friends and family which she did not want made public.”
This was a set-back for Rooney, and it was seen at the time as a victory for Vardy.
The judge dismissed the argument that the average reader of the words complained of would realise that it would not just be Vardy personally who had access to Vardy’s account.
(For what it is worth, I think this was an error by the judge.)
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This decision could have been the end of the matter.
For as the judge explained:
“It is almost always helpful for the meaning of the alleged libel to be identified at an early stage. Sometimes this will lead to the end of the case, because the words are not defamatory, or because they bear a meaning which the defendant cannot defend, or for some other reason. In any event, a decision on meaning will always have a bearing on at least one of the other issues in the case.”
And the judge congratulated himself and the court:
“As this case illustrates, the process of deciding meaning is a quick and efficient one. I have heard this trial and given judgment only two months after the order for such a trial was made.”
However, it seems that the effect this decision on meaning was to make this case more complicated and time-consuming.
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The parties then amended their pleaded cases and sought to settle the case.
According to the news report above, Rooney’s third attempt to settle the case was in January 2021, after the “meaning” decision was handed down
But for some reason the case was not settled.
Sometimes cases do not settle because one party is adamant that they want their day in court, and so will refuse any settlement offer.
Sometimes the settlement offers are too low.
And sometimes, parties can get trapped by how they are funded so that they have to continue with the case as that is the least bad option.
Who knows.
But for some reason this case continued after three reported attempts to settle, and the case was now going to become far more expensive and complicated.
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Rooney’s legal team now had a challenge on their hands.
A further preliminary hearing, before a different judge (and who is the trial judge who will be handing down judgment), took place in June 2021.
Vardy (and her lawyers) sought to strike out Rooney’s amended case, especially references to Vardy’s close relationship with journalists at The Sun.
Rooney (and her lawyers) were now building an “inferential” case – that it could be inferred from other evidence that Vardy was providing private information to journalists and that would go to the sting of the allegation.
As the judge said: “an exceptionally close relationship between the claimant and the newspaper or journalists to whom the Posts are alleged to have been provided is one of the building blocks on which the defendant’s inferential case is built”.
In other words: the determination on meaning had resulted in Rooney (and her lawyers) widening their case, so that it could be inferred from similar facts that Vardy leaked Rooney’s Instagram posts.
Vardy’s strike out application was not wholly successful.
For example, the judge said of one part of the application: “While these paragraphs do not go to the core issues, the allegation that the claimant had, or was the primary source for, a gossip column about professional footballers and their partners in The Sun is logically probative similar fact evidence.”
This court decision was, to invoke an analogy, where the match started turning against Vardy.
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And then there was the fateful preliminary hearing in February 2022.
This was the hearing where the parties made applications and counter application, and sought to get certain evidence included and excluded.
The judgment of this preliminary – not final – hearing is 56 pages, with 203 paragraphs.
This judgment is where we find that the evidence of Vardy’s agent “is that in August 2021 she lost the mobile phone that she had used during the period January 2019 to August 2021. The respondent states that this occurred while on a boat trip during a holiday, when the boat hit a wave, and she accidentally dropped her phone.”
We also become aware of the following message of Vardy:
“Would love to leak those stories x”
You can understand why Vardy would want such a message excluded from evidence, but her application to exclude it failed.
And so on.
What had happened is that Rooney (and her lawyers) had followed up their widening of their case with successfully having evidence put in about Vardy and her agent leaking stories generally.
At this stage, even if Vardy succeeded in the libel claim against Rooney, it was becoming obvious that any trial would be a PR disaster for her.
Any settlement at this stage must have been preferable to Vardy.
But still the case did not settle.
Instead it went for full trial in May this year.
And the proceedings were, as I have averred, a tonic for the gaiety of the nation:
A good time was had by (almost) all.
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Vardy can still win the case today.
Any inferential case is difficult – and proving Vardy herself leaked or directed the leaks of Rooney’s posts may be difficult.
If Rooney does not prove the following then she loses:
“Over a period of years Ms Vardy had regularly and frequently abused her status as a trusted follower of Ms Rooney’s personal Instagram account by secretly informing The Sun newspaper of Ms Rooney’s private posts and stories, thereby making public without Ms Rooney’s permission a great deal of information about Ms Rooney, her friends and family which she did not want made public.”
But.
Winning a legal case is not the same as winning in the court of public opinion.
And it may be that the costs consequences of Vardy “winning” may be horrendous if Vardy turned down a so-called “Part 36 Offer” (or similar) that offered to settle at a higher amount.
That a case like this will have four published judgments does not reflect well on our legal system.
That the legal costs will be very high – and to many obscenely astronomical – also does not reflect well on our legal system.
Libel litigation, however, can be highly technical and resource-consuming.
Instead of only the “meaning” being dealt with briskly in November 2020, there is really no good reason why the whole of the case could not have been done briskly, instead of the elaborate applications and counter-applications, strike outs and disclosures, amendments and oppositions.
And if it could not have heard briskly, it is a case that should have settled at the first available opportunity.
Libel litigation can grow like topsy, and often does.
And the point of libel litigation?
Well, supposedly the aim of libel litigation is “vindication”.
But after the PR horrors of the trial, it is difficult to see how Vardy comes out of this case well, even if she wins later today.
In seeking to vindicate her reputation, the practical effect of Vardy’s libel claim has been to undermine it.
This is a case that should never have gone to trial.
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Thank you for this. I (like many, I suspect) find these legal aspects of the case of far more interest than the actual substance of the allegations. I will nonetheless be looking out for the outcome later today.
I will also be investigating marmalade-on-beans!
I too, found this explainer particularly helpful but was similarly intrigued by the distracting issue of marmalade on beans. That’s clearly the big issue here.
And you will be rewarded by learning something of far greater consequence than the case under discussion.
https://www.theguardian.com/food/2022/may/13/not-a-shred-of-guilt-about-my-marmalade-on-beans-habit
A very lucid explanation of the legal processes involved in this case. But one thing I find hard to understand is how the Sun has avoided being called before the court to explain its own role in this affair – particularly given how many times its name has been mentioned in the proceedings (as indeed in this blog post).
They were involved in the February hearing, if I recall correctly. I don’t have the judgment to hand, but I think the judge decided that it would be disproportionate interference in press freedom to force the journalists themselves to reveal their sources.
Yes, thanks for reminding me. Of course, there are many reasons why journalists should not reveal their sources in certain cases (for example the recent Chris Mullin one). But in this case, I would have thought that the interests of justice would have been served by involving the Sun, without which I doubt this case would have ever taken place. In my view the judge was too easily swayed by the particular conception of press freedom that papers like the Sun habitually invoke when trying to cover up their own wrongdoing (as in the phone hacking saga, for example).
David, can you elaborate on what you mean by briskly? I think I recall something you said at a #LibelReform event circa 2009/10, asking whether there was a good reason why issues currently decided by Mr Justice Bloggs couldn’t be heard by His Honour Judge Bloggs instead.
I for one find this and increasingly attractive idea. County Court Judges are highly educated and experienced lawyers who regularly determine issues of ‘reasonableness’ which are, like ‘meanings’ in libel claims, concerned with what the ordinary man on the proverbial Clapham Omnibus would think and do. Damages in defamation are often at a level that would put them firmly in the fixed-costs, ‘fast track’ trial window, if they were any other type of claim.
Oh and for what it’s worth I totally agree with you about the decision on meaning.
In recent days, David, you’ve been writing about precision of language in certain ‘formal documents.’ Clearly an Insta post doesn’t quite fit the description… but the technique you describe of closely reading what words have been written is still appropriate here, I think.
“It’s … Rebekah Vardy’s account” is a very precise statement. In the chatty tone of an Instagram post, that looks incongruous. A more natural way to have written that would have been to simply name Vardy as the culprit, but Rooney didn’t do that. It makes me think that she was wise to precisely what she could and couldn’t say in order to stay on the right side of defamation law. I even wonder if that phrasing was added after legal advice.
You and I go ‘Of course someone as important as Mrs Vardy will have someone managing their social media accounts’ – and indeed “The dog ate my homework, erm, some ex-minion with my password must have done it babe” was her prepared excuse ready to go – but the learned judge took the position that the general reader would think that she did it all herself.
Which is odd, because Mrs Rooney was very precise about saying that it was the account she was naming and shaming.
Perhaps the preceding paragraphs about ‘someone’ tipped the balance in the judge’s mind. L
As David is wont to remind us: words matter.
In particular, he teaches us to consider what is said, what is not said, the plain and ordinary meaning of words; and whether words in a particular form or context carry unorthodox meaning.
Out of the collective idiocy of this case, the one element that supervises me the most was the ruling where the court determined that,
“It’s Rebekah Vardy’s account.”
Could be selectively construed by Mrs. Vardy to identify her personally and therefore to determine that she has been libelled.
In particular, once it became known that Mrs. Vardy had also given access to the same account to her publicist [sidebar – on what planet does the otherwise unemployed wide of a sports personality need her own publicist?], then the precision of Mrs. Rooney’s original post would, to this layperson, seem to prove fatal to Mrs. Vardy’s case.
Obviously I’m wrong (common occurrence!) or we would not be where we are now.
So I am interested to know if anyone has a view as to whether or not Mrs. Rooney may have grounds to appeal based on a selective and flawed interpretation of the meaning of Mrs. Rooney’s post.
After all, Mrs. Rooney could have written, “It was Rebekkah Vardy”. She did not. She was careful to specify only the account, not the person.
I wonder that might have happened if Rooney had said it was @RebekahVardy (or whatever the handle is) rather than what she said. For example if it had been a company account or sometimes people have a joint account for a home or pet for example? That could have been more directly an allegation at anyone with access to that account which I assume is commonplace for “celebrities”
Libel cases can be ruinous to the claimant, even if they win. Whistler “won” a farthing and went bankrupt. Oscar Wilde had to drop his case and his world fall apart. Ask Johnny Depp and Amber Heard if either is happy with a score draw after home and away legs in the UK and the US.
Anyone trying to manage their reputation should beware the “right-thinking member of society”, one of the legal actors on the Clapham omnibus alongside the “officious bystander” and the “fair-minded and informed observer”.
LOL. I was familiar with the right-thinking member of society but I will have to look up the second and third.
Once again a very interesting piece.
It brings to mind phrases of my dad (God rest his soul).
Not a formally educated man but one so wise.
“Bad settlement is good law”
“You don’t always get justice in court; you just get the law”.
In this case it appears that justice and the law are one.
Rooney wins in large part because Vardy is likely to have destroyed evidence that would have proven Rooney’s case…the balance of probability is a wonderful device.
Indeed…
A friend of mine uses the expression: “Once is a random event. Twice is coincidence. Three times and its enemy action.”
The convenient loss of a phone and then the loss of messages while trying to “export” them for the discovery request and then the Whatsapp messages discussing how to make knowingly false statements to Mrs. Rooney – in total there were many more than “three times” here.
I very much doubt that it would result in sanction in this case, particularly because it would be difficult to prove, but if the Court found that for example the loss of Ms. Watt’s mobile phone (at sea) was deliberate, then in legal terminology that might fall somewhere between “tampering with evidence” and “perversion of the course of justice”.
The CPS takes a very dim view of the former and a very, very, very dim view of the latter. They call it “abuse of process” these days:-
https://www.cps.gov.uk/legal-guidance/abuse-process
With respect, a civil lawsuit for defamation is quite different to the investigation of a crime or a trial in the criminal courts.
Perjury (that is, the offence of lying on oath) and abuse of process (that is, using the courts for illegitimate means) can occur in either case, but (as far as I am aware, but do correct me if I am wrong) perversion of the course of justice applies in criminal cases not civil cases. For example https://www.cps.gov.uk/legal-guidance/public-justice-offences-incorporating-charging-standard
Failures in the required disclosure and inspection of documents in a civil case would most likely result in adverse inferences being drawn at trial, as they did in this case. Prosecution for contempt of court or perjury is possible but remote. Here is a recent example where the Court of Appeal decided that egregious destruction of evidence in a civil case could be contempt (the reaction of a solicitor to hearing that the court had ordered the preservation of evidence was, allegedly “Burn it”): https://www.bailii.org/ew/cases/EWCA/Civ/2021/145.html
Some more in a similar vein over here: https://chrisdaleoxford.com/2021/02/16/two-document-destruction-judgments-in-england-and-wales/
In relation to the Rooney-Vardy case, the same person also wrote these wise words back in February: “The only conclusion I can draw from this WAGs judgment is that your dispute perhaps ceases to be worth litigating once you are paying expensive lawyers to plough through your WhatsApp and Instagram data from years ago. … What does it feel like, though, to wake up every day to lawyers’ questions about WhatsApp messages of long ago? … I wonder if the WAGs sometimes wish they had just got on with their lives.”
https://chrisdaleoxford.com/2022/02/11/the-north-sea-ate-my-evidence-a-tale-which-dogs-the-wags-preparing-for-trial/
Sclerotic the English legal system may be, but I was delighted at the apparently very comprehensive ruling. Mrs Justice Steyne was not taken in. It is unlikely that Vardy will be charged with perjury, but her “Reputation, reputation, reputation! Oh, I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial.” Ain’t that the truth. Vardy in attempting to defend her “reputation” ended with it completely trashed.
DAG is quite right. It should never have come to court and we are told Rooney tried three times to settle. I suspect the reason may be DAG’s old friend: Ms Hubris. Followed inevitably as night follows day by Ms Nemesis.
The story is already all over the media – with one exception – I suspect it will be buried on an inside page of “The Sun” tomorrow. Those who are familiar with The Sun’s reporting of the Hillsborough disaster will be aware that as a result it has almost no circulation in Liverpool and the Rooneys are nothing if not proud Liverpudlians. Rooneys 3: The Sun 0.
When you say it should never have come to court, what exactly do you mean? There is nothing to stop a rich claimant from bringing a libel claim and there is nothing that requires the two parties to settle.
In this particular case, what Vardy wanted, was something other than money – an apology from Colleen Rooney, which Colleen Rooney was never going to give.
As a more general point, high value libel litigation in general is something of a sham, with the legal process being about a claim for a modest sum of money, but with the parties incurring huge costs in an attempt to secure something else.
Thank you very much for this excellent analysis, David, thorough and entertainingly written as always.
It also answered the question which I’ve occasionally pondered: why the hell did Mrs. Vardy proceed with the trial, knowing she would be taken apart by Mrs. Rooney’s lawyers?
You list three possibilities; given her husband’s earnings, I doubt it was the sunk cost of the proceedings which prompted Mrs. Vardy to proceed. The settlement being too low may have been a consideration initially, but I’m sure a little toing and froing would have resulted in a mutually acceptable figure.
So, to me, it appears to be an ill-advised “I want my day in court” thing, after her lawyer’s initial success with the “meaning” decision.
That ego she has is an expensive luxury.
My guess is that she misinterpreted her lawyer’s advice.
For example, she might have asked what her legal remedies were. The lawyers would answer that question, but the answers would be contingent on what the facts were.
So, they might have said that she had a strong case, if the facts were as she had told them.
Well, the BBC are now reporting that the court found in favour of Mrs. Rooney:-
https://www.bbc.co.uk/news/entertainment-arts-61719250
Only put in an email what you would be happy to write on the back of a post card.
I’m surprised by the apparently accepted meaning of the words complained of and the version of which was put forward by the defence. It seems to me that on a plain reading of the words, they ought to be libel proof.
They refer to facts that are known to the defendant beyond doubt. She knows someone has been betraying her trust. She states that she had a suspicion as to whom it might be.
She knows that she set a trap, and presumably evidence can be adduced to prove the circumstances.
She states as a matter of fact that the account which she left open was the claimant’s.
The stories that she fabricated found their way into the Sun “newspaper”, as she expected they would.
These are all provable facts, regardless of the implications or any intention to defame.
These facts do not preclude the possibility that the information may have come from someone else. For example, it’s entirely possible that some Instagram moderator may have been the culprit.
But I think it’s reasonable to conclude that the account in question was responsible, even if the owner of the account was not.
It’s also possible that Rooney communicated these stories to others, but that makes no sense.
It was open to Vardy to protest her innocence.
“My account was silently hacked!”
“Someone got hold of my phone! (many times)”
Instead, she chose libel action, knowing fully that the words complained of were truthful. I just don’t see how this ought to have been actionable, or if it was then the evidence of truth should have prevailed at the preliminary hearing. Am I wrong?
Matt, I am not a lawyer, but libel is a funny thing. The court decides on the meaning of the words and can ascribe an innuendo meaning.
So, making a statement libel proof is probably more complicated than it might appear to a non-expert, such as myself.
Language is also quite complex and it is possible to communicate by
implication a meaning that is not apparent from the text, but which is understood due to a wider context.
I was also surprised by the finding of the ‘meaning’ hearing.
But not as astonished to discover today that Rebekah Vardy and her agent more than once discussed the possibility that Coleen Rooney was posting fake stories to see if they were leaked..
.. and continued leaking things from her private Instagram account anyway.
During the trial, Mrs Vardy’s barrister said she must be either very clever or very cynical.
The result of the case and the level of solo detective work by Coleen Rooney – including realising that two mutual acquaintances would be going to a party at the Vardy’s and so making them the second and third people who could see a particular post just in case Mrs Vardy mentioned it – shows us which one of the pair is the clever one and which one is not.
Would the late George Carman QC have made a difference? https://en.wikipedia.org/wiki/George_Carman
I’d like to ask a hypothetical question based on what we now know to be the facts of this case. In her Judgement, The Hon. Mrs. Justice Steyn noted that there were multiple occasions where Mrs. Rooney caused “Warning” Posts to be published on her Private Instagram account, once she had determined that the source of the stories being published about her by The Sun newspaper could only have originated by someone with access to that source.
Suppose, instead, Mrs. Rooney had done two slightly different things:-
1. Written to all 300+ subscribers to her personal Instagram Feed, saying something like, “Everyone, I’m starting to think that some of the stories about me in the Sun might be coming from someone who has access to this private Instagram feed. I love you all, but for the avoidance of doubt, I am sharing this information and these images with you for the sole purpose of allowing us to keep in touch with each other. I do not grant anyone permission to disclose anything on my private Instagram feed with any third party. If you’re receiving this and you were the source of the stories in the Sun, please stop immediately. Thank you.”
2. Had a solicitor write a letter to The Sun newspaper, noting the articles they had published and pointing out that in her belief, Mrs. Rooney held that the source of those stories could only have been her private Instagram Feed and that any information the Sun received from that channel was disclosed against her expressed permission.
Now, at that point, if Mrs. Vardy and/or (Ms./Mrs.) Watt had continued to provide details of Mrs. Rooney’s private Instagram posts with the Sun, and if the Sun had continued to publish them, then I *think* that either Mrs. Vardy and/or The Sun Newspaper might be skating perilously close to a breach of the Computer Misuse Act of 1990.
It’s potentially a little bit of a grey area, inasmuch as it might be possible to argue that there is no difference in law between “access” to a private Instagram feed to personally view data once access has been granted; and “access” to the same data in the same feed with the intent of downloading or otherwise copying the data.
Reading the Act (https://www.legislation.gov.uk/ukpga/1990/18/section/1) and looking at Clause 1, I do think it would have been necessary for Mrs. Rooney to explicitly stipulate what she considered she had/had not authorized.
But the moment she did that, I think the situation might have been very, very different both both Mrs. Vardy and The Sun. In fact, I can’t help but wonder if The Sun might have stopped taking material from Mrs. Vardy and/or (Ms/.Mrs.) Watt on the grounds that they thought that if they did so, then the written warning from Mrs. Rooney would have them “bang to rights”.
Asking partly out of curiosity and partly from the perspective of wondering how someone might take reasonable precautions against this sort of abuse?
Of course, the fact that Instagram doesn’t have this sort of permission scheme baked in to their platform at the outset ought to be a warning to people to avoid it like the plague. But there you are.
Once you give someone something, what control do you legitimately have over how they use it if they didn’t agree to your terms?
In the eyes of a law, it very much depends on what the “thing” is, hence my cautious approach to referencing the CMA.
To give you an example: if someone goes to a hardware store and buys a hammer, the manufacturer and/or vendor of the hammer have no control over it once ownership transfers at the point of sale. However, if someone “purchases” software, then today they typically won’t get to “own” the product. Instead, they will get a single, non-exclusive, non-transferable license that grants them the “right to use”. In other words, even though some of the terms of a software “purchase” agreement operate very much as though you may be buying a physical thing, other terms make it very clear that you don’t in fact get blanket rights.
A more interesting element of the CMA that would apply in these circumstances, however, would be whether or not Whatsapp delegated sufficient rights to individual users to enable them to have legal control over access to their private channels. The access rights are themselves contained within the software, which is owned and Whatsapp operated by Farcebook (sic). So we’d likely want to read the small print to understand what rights Whatsapp granted the principle account holder.
Suppose I send you and email and insist that it’s contents are confidential. I assert that you may not share its contents with anyone for any purpose.
Are you bound by my insistence?
“It depends.”
That is an excellent use case / example.
I’m not a lawyer, so the following constitutes nothing more than a layperson’s observation.
If you receive an email from your bank or a similar service provider, you will often find a detailed legal disclaimer included by default, which includes the instruction to delete and not act on any email not intended for you.
This tells me that either it is possible to enforce some form of NDA-like control over a sent email, or, in the alternate, the banks and other commercial entities actually aren’t entitled to do this, so wrap some legalese around their emails in the hope that it can intimidate the un-intended recipient to follow the instructions.
But let’s suppose it’s not quite such a clinically distant relationship: suppose we are acquainted and you send me something that you do not want me to disclose. In this scenario it is possible that it depends on how you go about informing me of that intent.
For example, if you do so after transmission, or in a footer of the email with the disclosure, you risk me disclosing the email unwittingly, or by turning a blind eye to your wishes.
We don’t yet – have a more sophisticated version of email where the delivery mechanism allows you to apply conditions to which I must agree before the payload will be released to me… (would be nice, but very narrow appeal, I suspect)…
I have a sneaking suspicion that the outcome of the question might come down to two things: the recipient’s willingness to comply with the sender’s wishes; and the relative depth of the sender and recipient’s pockets…
It makes no sense that I can impose a contract on someone without them having an opportunity to decide whether to accept the terms.
Perhaps there are exceptions for regulated matters. And shrinkwrap licenses. It seems unlikely that either would apply to an unsolicited email from an individual.
By the way, by reading this, you are now obligated to touch your toes. And to tell no one that you’ve read this. And to make me a sandwich.
There is a reason why most cases settle. That is because the cases are about money. So, at any point in the proceedings, there will be range of financial outcomes for both parties.
There will also be a probability of success and failure, with a reasonable
margin.
All of this means that both parties’ lawyers know the upside and downside for their client and the other side.
Hence, they will make offers to settle and the negotiations will be in a reasonably narrow range.
Refusing to settle risks disastrous costs, so the incentive is to settle.
In the case of Vardy, her position was not one which could be represented by money. She wanted the impossible-
namely vindication when the facts were against her. She also had little financial constraint. So, the case was unlikely to settle, in my humble opinion, as there was no offer that she could accept.
Do you think, though, that monetary compensation was the primary motive in this case?
I read through Justice Steyn’s ruling and found some of the comments by Mrs. Vardy – for example see Paragraph 283, which discussues an exchange between Mrs. Vardy and Ms. Watt, immediately after Mrs. Vardy learns of the public Twitter Post in which Mrs. Rooney identifies Mrs. Vardy’s accunt: “Wow [flushed face emoji] that’s war…”
(As opposed to, “Oh no! She found out it was me! Now what?”)
In fact, having read through the entire ruling and all the excerpts it includes of exchanges between Mrs. Vardy and Ms. Watt, the distinct impression I took of Mrs. Vardy was that she was small-minded, cold, calculating, petty and vindictive. Her ‘friendship’ with Mrs. Rooney comes across as nothing more than a device to gain more publicity for herself. To be fair, there are also comments that she makes to Ms. Watt (her publicist) along the lines of “I want paying for that” and expressing her desire to have her own income and funds, independent of her husband, which could suggest that she saw a libel case as a lucrative option.
But if you read Justice Steyn’s para 283 all the way down, then the last element it contains is some advice from Ms. Watt to Mrs. Vardy, suggesting how Mrs. Vardy could try and deny/deflect being the origin of the leaks. The wording of that proposal shows Ms. Watt to be a thoughtful, articulate and shameless individual. So it is possible that Mrs. Vardy was encouraged to seek relief by those whose advice she valued.
I am reminded of the sage advice: “A good lawyer will help to ensure that you win any case that goes to Court. A great lawyer will keep you out of Court in the first place.”
I did my dissertation on libel (and slander) back in the day. In my subsequent legal career I have not touched a libel case, unsurprising really as it is a bit niche.
I followed it closely, partly for the legal points and also Wayne was the manager of my beloved Derby County for most of the case. I understand he gave evidence well and I do think he has matured over the years, he always gave a good impression at Derby.
Obviously now we know the judgment, which I have read.
It’s the phone in the North Sea that is most unconvincing, that’s the nail in the coffin for the case. We aren’t that gullible.
Great analysis David, thank you, probably the best I’ve read.
David, to change the subject, this may be something about which you do not wish to express a view, but do you have any thoughts on the legal and policy implications of today’s third Court of Appeal hearing in the case of Archie Battersbee, particularly given the novel intervention of the UN Committee on the Rights of Persons With Disabilities, via the Secretary of State for Health and Social Care? (The UKSC having declined to take an appeal, and the parents seemingly accepting that an appeal to the ECHR would not achieve much.)
The three high court decisions and two appeal court decisions so far make harrowing reading, and I can’t help thinking that it is time for the poor child to be allowed to die with dignity, nearly four months after first being admitted to hospital, with no detectable blood flow or activity in the brain, wasting away with a failing gut, and necrotic tissue in the lumbar spinal fluid.
* CA, 6 July: https://www.bailii.org/ew/cases/EWCA/Civ/2022/935.html
* CA, 25 July: https://www.bailii.org/ew/cases/EWCA/Civ/2022/1055.html
In the second appeal hearing, it was conceded that the parents “continue to hope and pray for a miracle [but] acknowledge the medical evidence about the severity of Archie’s condition and the clinicians’ view that he has no prospect of recovery”, and accept that there is “no prospect of recovery and that Archie’s death is most likely to occur within weeks, as opposed to a period of months or longer.”
While sensitively dependent on the facts, the same sorts of issues seem to blow up from time to time in relation to end-of-life care of children – Charlie Gard, Alfie Evans, others.
Is there a better way of doing this?
I do not know enough about this or the other cases you mention to express a view.
Fair enough. For what it is worth, I am also just an interested observer, not a subject matter expert, but it is one of those practical situations where law and policy overlap with medicine and ethics and emotions. A potential role for the UN was a new one for me.
Ideally we would like doctors and parents (and/or patients) to agree about the way forward in these cases, and I suspect that is what usually happens. But when they disagree it seems to me that the best way to reach a resolution will involve an independent decision maker. Within a legal context, absent some sort of process of mediation or arbitration, that will be a judge, applying section 1 of the Children Act 1989, and treating the child’s welfare as the paramount consideration. I’m not sure there is a better way, but I’d be open to suggestions.
Let me direct any interested readers to what Joshua Rosenberg wrote on his blog today: https://rozenberg.substack.com/p/last-minute-hearing-in-archie-case
This case appears to be reaching its sad conclusion, after the third Court of Appeal hearing yesterday, and a second refusal by the UK Supreme Court to hear a further appeal (including an intervention from the Secretary of State for Health and Social Care).
More generally, Sir Mark Hedley was discussing how these difficult issues are resolved on Radio 4 this morning. His experience of similar cases as a judge at the Court of Protection was that most are resolved quickly and quietly. It is only the cases where the family want publicity that become an extended cause celebre.
(Perhaps, I might suggest, to link to another thread, in a hope that a populist appeal to the “court of public opinion” might assist?)
In agreement is this interesting Twitter thread from Doncaster Council, with the last tweet providing the soundest of advice.
https://twitter.com/MyDoncaster/status/1554761841846411265