Category: Communications and Media & Law and Policy

How you can be sued for libel for reporting things said in Parliament

10th March 2022

On 9 March 2022 the following was stated by Bob Seely MP in the House of Commons:

What Seely said is set out on the ‘They Work For You’ website:

And it has been published in Hansard:

What has struck many about what Seely said is that reporting parliamentary debates could be actionable under the law of defamation.

Surely, some thought, reporting what is said in parliament has absolute privilege – that is legal protection – from any law suit.

Well.

The legal position is not straightforward – though you may think it should be.

And the unsettling answer is that you can be sued for reporting things said in parliament.

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First there needs to be a distinction.

What MPs and peers themselves say in parliament does have absolute privilege.

This protection is provided by the Bill of Rights:

“`That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”

From time to time, (ahem) spirited lawyers do threaten parliamentarians in respect of things said in parliament (here is a 2010 example) – but the lawyers should not do so, `and any legal claim would fail.

(The position is less clear-cut for witnesses at select committee hearings – but that is a topic for another time.)

This means there is nothing that a law firm can do with a legal threat to Seely or any other parliamentarian about what they say in parliamentary proceedings.

The MP or peer has absolute privilege – though there are rules in both houses of parliament about what can and cannot be said about certain matters – and those rules are not justiciable in court.

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But.

Those reporting – or indeed repeating – what is said in parliament do not have this same absolute protection.

The protection is instead ‘qualified’ – and so is subject to a condition.

This condition is (in general terms) that the report – or other repetition – is not malicious.

(This condition is the general effect of the august Parliamentary Papers Act 1840 and the Defamation Act 1996.)

This therefore means a person can be sued for defamation (and perhaps for other things) for reporting or repeating what is said in parliament when in doing so they acting maliciously.

The onus is on the claimant to show this malice.

So this means that a potential claimant can sue – and thereby threaten to sue – a person who is reporting or repeating what is said in parliament.

The potential claimant and their lawyers would have to meet a high threshold if there were to issue such a claim and demonstrate malice – and it may be that they will fail to do so.

But nothing at law stops them issuing the threats.

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How this all should work in an internet age where footage from parliament TV can be captured and circulated instantly is not clear.

For example I would not publish the footage of Seely above until and unless I saw it reported in Hansard, as I would want the protection of the 1840 Act.

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There is the eternal question of what constitutes ‘malice’.

 

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And there is also a question about whether lawyers for potential claimants can make over-stated libel threats when they have no evidence of malice.

As Professor Richard Moorhead explains there are general professional conduct rules about what can and cannot be in a threatening letter from a law firm:

The Solicitors Regulatory Authority states the following about solicitors’ professional duties in respect of disputes:

In essence – libel claimant lawyers cannot (and should not) threaten legal proceedings lightly – and if they do, there can be professional repercussions for those lawyers.

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Perhaps there should be further protections.

For example: in respect of infringements to registered intellectual property rights (eg trade marks and patents), the Intellectual Property (Unjustified Threats) Act 2017 prevents lawyers from making baseless threats.

Perhaps this should be extended to defamation threats.

And barristers and solicitors are under general professional obligations not to allege fraud without satisfactory evidence.

Presumably it would not be impossible for a similar rule to prevent baseless defamation threats, especially where there is no evidence of malice.

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None of the above suggests – or is intended to suggest – that any particular claimant firm is making such baseless threats.

Instead the above points to the protections that those receiving the threats have (or should have) so as to be confident that such threats are not baseless.

And it also points to the high hurdle that any claimant firm needs to meet so as to allege malice when making such a threat.

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We do have the gap in the law between absolute privilege for parliamentarians and only qualified privilege for those outside who report and repeat what those parliamentarians say.

It is a gap which in my view should be filled, and one which is not sensible (or sustainable) in the internet age.

But it is gap that has not yet been filled.

And so yes – as Seely said, it is possible for a law firm to threaten newspapers and others for what is said in parliament.

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For completeness, this is not a new problem either for parliamentarians or for those reporting on what they say.

Those with good memories will recall the Trafigura matter – which was not about defamation but confidentiality – where a member of parliament said something which seemed to be subject to (and thereby in breach of) a court injunction.

(And to demonstrate my own personal lack of malice – this is a link to how Trafigura’s lawyer saw what happened.)

So none of this is a new issue – and it is one that goes to the very essence of a separation of powers.

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Disclosure: I happen to be a qualified solicitor, and I still help clients facing libel and other claims, and so this post is informed by that experience.

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A libel defeat for the Eurasian Natural Resources Corporation

8th March 2022

Today’s post will be just a short one, so as to link and draw attention to this judgment.

Paragraphs 38 and 39 are beautiful and quietly lethal.

By way of background, the corporate claimant – the Eurasian Natural Resources Corporation – sued in respect of the outstanding book Kleptopia.

(Buy it here – EDIT This is now an Amazon link, as the previous Bookseller link says they are out of stock.)

The judge held that the book did not hold the defamatory meanings pleaded:

“In short, the Book does not bear the defamatory meaning contended for by the Claimant because, read in their proper context, the allegations complained of by the Claimant do not refer to any ENRC corporation” (paragraph 36).

But.

The judge goes on and says, in effect: hang on, this book does make serious allegations about the claimant, so why is the claimant not suing on those serious allegations?

Why, asked the judge in effect, is the Eurasian Natural Resources Corporation not suing for being called “[a] corporate front – “a charade” [ ] used [ ] for criminal activities including corruption, money laundering, theft and embezzlement. “

Well, why indeed.

This, of course, is not an express admission by the Eurasian Natural Resources Corporation that it is such a front.

But one suspects these judicial comments in a legally privileged, public judgment were not those sought by the claimant in bringing this case.

Less SLAPP – and more of a slap-down.

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Disclosure and disclaimer: the journalist defendant also works for the Financial Times, where I am a freelance ‘contributing editor’ but nothing in this post refers (or is intended to refer) to any case brought by Eurasian Natural Resources Corporation against any other FT entities and/or individuals; and I also long ago happened to work for the claimant’s law firm.

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Oligarchs in London – what lawyers are to blame for and what they are not

1st March 2022

There is a negotiation tactic when a party wants to be robust or unreasonable but wants to appear to be nice and approachable.

The tactic is to blame the lawyers: “I would agree, you see, but I have been told by my lawyers that I cannot”.

And nobody minds – the party gets to save their face, and the lawyers shrug off the misplaced blame and charge their fees.

There is a similar move in politics and media.

The politician or pundit gets to blame the lawyers – and to get easy nods and cheers.

“It is the lawyers to blame.”

In turn the less alert of those listening will roar and demand that the lawyers be named and shamed.

And nobody minds – the politician and pundit gets to save their face, and the lawyers shrug off the misplaced blame and charge their fees.

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This political and media dance routine obscures what lawyers cannot be blamed for – and what they can be.

Individual lawyers at any one time can only work with the law as it stands.

If the law does not permit or enable a thing, then a lawyer cannot make a difference.

If you want to stop a person from having or exercising certain rights then legislative change can often make the difference wanted.

Take for example, sanctions on oligarchs.

Oligarchs will have rights and can exercise their rights.

That lawyers advise and assist so as to make those rights effective is not – ultimately – the fault of the lawyer.

If the government really wants to sanction an individual then there is little that lawyers can do to prevent it.

There are certain limited exceptions – obviously in respect of life and liberty – but almost anything else is possible if the government is determined and goes about it in the right way.

Take, for another example, defaming oligarchs.

Again, oligarchs have a right to defend their reputations.

And lawyers will be there to advise and assist so as to make that right effective.

But such lawyers can only work with the law of defamation as it stands – and it is entirely open to the government to seek to reform the law of defamation.

There are reforms that could be made – for example to make SLAPP legal cases far more difficult to threaten or to make.

Determined efforts and reforms, however, would take time and effort by the government – and so it is easier to blame the lawyers instead.

There will always be those who will clap and cheer.

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But.

The defence above does not absolve lawyers in England and Wales from personal responsibility.

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That said, barristers – those lawyers who tend to do advocacy in court – are (supposedly) bound by a cab-rank rule which means they are (supposed) to take case in their area, regardless of who are instructing them.

As such barristers can be instructed in a matter contrary to their own views.

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Solicitors, on the other hand, are not bound by a cab-rank rule.

And it is solicitors who will be sending the letters on behalf of oligarchs in respect of sanctions and defamation.

Solicitors do get to choose who they act for.

Indeed, the business models of certain solicitor practices are based on there being numerous foreign corporations and high net-worth individuals wanting to enforce rights in London.

(And for what it is worth, I choose not to act for oligarchs or foreign states, and do not act against newspapers, even though I am a media and commercial lawyer.)

But.

If one a solicitor does not want to act for such clients in such cases, then there will be other solicitors who will.

Solicitors may be able to choose who they act for, but they cannot choose to change the law.

And so here – even without denying the personal responsibility of lawyers who choose to act for such clients – we again have the ultimate problem being the law, rather than lawyers.

The hard truth is that, although it is satisfying to blame – and name and shame – lawyers, it is the law that is at fault.

What lawyers do is a function of that law.

But that would require difficult questions of how the law came to be in the state that it is.

And that is why law-makers and their political and media supporters choose to blame lawyers instead.

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The Chelsea FC statement that is not what it seems

27th February 2022

Last night – at 6.45pm on Saturday – Chelsea Football Club unexpectedly published this statement:

In terms of media coverage, the statement could not have been timed better.

It was early enough to be just about picked by the Sunday newspapers, but late enough to avoid lengthy scrutiny.

And it was at that time on a Saturday that those on Twitter are expecting ‘breaking’ stories.

Accordingly, the statement was quickly taken (and shared) by many in news and sports media as being significant.

This apparent significance also seemed warranted by the content of the statement, which I publish below (with sentences split out):

“Statement from Club Owner Roman Abramovich

“During my nearly 20-year ownership of Chelsea FC, I have always viewed my role as a custodian of the Club, whose job it is ensuring that we are as successful as we can be today, as well as build for the future, while also playing a positive role in our communities.

“I have always taken decisions with the Club’s best interest at heart.

“I remain committed to these values.

“That is why I am today giving trustees of Chelsea’s charitable Foundation the stewardship and care of Chelsea FC.

“I believe that currently they are in the best position to look after the interests of the Club, players, staff, and fans.”

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Let us look at what this actually says.

One phrase which stands out is “stewardship and care” – which Abramovich is “giving” to the “trustees of Chelsea’s charitable Foundation”.

Two sentences before that phrase – deftly – this is framed as a “decision”.

This looks solemn and legally meaningful.

But.

The statement has no legal meaning at all.

Indeed, it would seem that the statement was crafted deliberately so as to give the impression that something legally significant was happening – a “decision” to transfer a thing to “trustees” – when nothing legally significant was happening at all.

This is PR – and this is what you get when you can afford expensive and wily PRs.

And it had the desired effect:

And there were many excited tweets from those in news media who should have known better suggesting the statement said something important.

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The phrase “stewardship and care” looks like it should be a legal phrase.

It is similar to, say, “duty of care” (which is a legal term of art) – and “stewardship” has a nice legal-ish comforting ring to it.

But it is flapdoodle.

What one transfers to trustees is not “stewardship and care” but ownership of property.

The trustees then – literally – hold that property on trust on behalf of beneficiaries.

But if you look at the Chelsea FC statement there is no property been passed to trustees.

The word “trustees” is, in effect, a misdirection.

They may as well be assistant referees or physiotherapists, for their title is – strictly speaking – irrelevant to what is being described

It is very skilfully put-together statement for journalists and others in a hurry.

And only those with a background in commercial and trusts law would realise immediately that the statement did not actually say what it seemed to say.

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This does not mean that the fact of such a statement is not without its own significance.

There would be a purpose to such a statement at such a time: statements like this are not randomly put out at 6.45pm on a Saturday when Russia is invading Ukraine.

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Of course: there is nothing wrong about retaining ownership of Chelsea FC – even from my perspective as an Aston Villa supporter.

It is certainly not defamatory to say that Abramovich remains as much the owner of Chelsea FC after this statement as he was before.

(And we would especially like to welcome all the representatives of London’s defamation law enforcement community who have chosen to join us here on the law and policy blog at this time.)

Nothing on this blog should be taken to mean that one should think any worse of anyone involved – indeed, this post registers admiration at a such a perfectly deft exercise in PR.

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The polity and the media

9th February 2022

There have been various communications revolutions in human history.

One, of course, is the development of human language – though we are still working out the extent to which this actually separates us from other animals capable of complex communications.

Another was the notion – which we appear not have had for most of the history of our species – that language can be written down and thereby stored or sent long distances.

This notion was instrumental in the development of more complex societies, as it meant for example than laws could be recorded and conveyed other than by oral tradition and transmission.

And about five hundred years ago, the development of movable type meant that things could get published and circulated on a scale that would not have been possible in days of manual reproduction of texts.

The most recent radical change in communication is one with which many reading this blog will be familiar.

In our lifetimes, when we were young, it was difficult-to-impossible to communicate with and publish to the world – unless you went through the gatekeepers of established newspapers, publishing houses or established broadcasters.

Yes: you could, perhaps, publish a vanity book, or pamphleteer outside McDonalds, or launch a pirate radio station in the North Sea.

But short of such extreme exertions, it was hard – as recently as the 1990s – to publish or broadcast whatever you wanted to the world.

And now, by reason of the internet and easy-to-use platforms, anyone with an online connection can, in principle, publish or broadcast on the widest possible scale.

We are now perhaps so familiar with this change that we forget how radical a shift this is.

And we are still reckoning the consequences.

One consequence is that our conventional ideas of politics and media are shifting – and we do not know for certain what will happen next.

The lack of gatekeepers on political discourse has a relationship with the populism-supporting figures such as Johnson and Trump.

Traditional mediating vehicles of transmission and participation – say, political parties and newspapers – are now in many respects redundant in these days of direct connections.

The law itself struggles to keep up – and our laws on social media are a hotchpotch of the unrealistic and outdated, but these laws also have no obvious alternative.

One hobgoblin of law and policy thinking is that nothing is new – we can see that the same will happen as before, as long as we know the right precedents.

How will our polity will be affected by these fundamental changes in politics, media and communications?

Will it mean a more liberal future?

Or a more authoritarian one?

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A critical, general overview of the Sue Gray investigation

15th January 2022

This post brings together my posts and tweets relating to the Sue Gray investigation in to the Downing Street parties during lockdown, as well as some new thoughts, into a single general overview.

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There are a couple of preliminary points worth making.

First, investigations like this – and other such forms of ad hoc inquiry – can be signs of an unhealthy polity.

(I argued this in the Financial Times back in 2014 and on this blog last year.)

This is because many inquiries, and most demands for inquiries, are also implicit admissions of State failure.

The admission of failure is that the other permanent elements of the State – primarily the executive, the police, the permanent regulators, the ombudsman system, the legislature, and the judiciary – have all failed in their roles.

If these elements of the State had done their job properly at the time – or been allowed to do their job properly at the time – then there would be less need for ad hoc inquiries after the event.

Every demand that there ‘should be an inquiry’ is also an implicit acceptance that the elements of State with the legitimacy and the purpose to supervise and scrutinise have been deficient.

And as this blog has also averred, often those put at the head of such investigations and inquiries are not sufficiently experienced or well-suited to obtain evidence which those facing scrutiny are unwilling to provide.

(In particular, judges and barristers spend most of their careers looking at documentary evidence which has been helpfully ascertained and compiled by others, rather than ever digging out the raw evidence for themselves.)

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The second preliminary point is that ad hoc inquiries usually suit politicians and others with public power – especially if those inquiries do not have powers to compel evidence which would otherwise not need to be given.

Here it helps to think of the techie phrase Garbage In, Garbage Out (GIGO).

Most inquiries and investigations are only as good as the evidence – documents and testimony and so on – available to them.

If you control the flow of evidence in to the process, you often have significant influence of the ‘findings’ and ‘conclusions’ that come out of the other end.

Garbage In, Garbage Out.

The eye-opener for me on this was when I was a central government lawyer about fifteen-or-so years ago.

I met other central government lawyers who explained how on inquiry work they would work backwards from what they wanted to achieve to the terms of reference of the inquiry so as to ensure they put in the evidence that would tend to the desired outcome.

And the government and others with public power (for example the police) have access to many good specialised lawyers who know how to game the inquiry system like this.

This is not necessarily wrong – it is the job of a lawyer to understand the rules of procedure and of evidence in respect of any process on which they advise.

But it is certainly contrary to the naive view that an inquiry will somehow magically find all the information that will enable it to come to some desired scathing conclusion.

And when the inquiry does not reach a scathing conclusion, the reaction is often that those doing the inquiry have deliberately sought to do a ‘white wash’.

Whilst in reality, the apparent ‘white wash’ is because of what happens with the supply of evidence in the first place.

If you control input the evidence, you will tend to control the output.

Garbage In, Garbage Out.

And that is why any worthwhile inquiry or investigation always needs to be independent of those facing scrutiny and why there needs to be powers to obtain information that those facing scrutiny will not want to provide.

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Now we come to the Sue Gray investigation, the terms of reference of which are published here (I am assuming they have not been amended) – and these terms of reference should be read by everyone following this investigation.

You will see that the investigation was to be conducted by the Cabinet Secretary.

It is not unusual for the Cabinet Secretary (who is the head of the domestic civil service and reports directly to the Prime Minister) to be asked by a Prime Minister to conduct investigations into central government matters.

Within the domestic civil service the Cabinet Secretary has unique authority, although – ultimately – he or she will not be independent of the Prime Minister.

But the Cabinet Secretary is not now conducting this investigation.

This is because the Cabinet Secretary attended a gathering which is part of the investigation.

And so an investigation which sort-of-makes-sense when conducted by the head of the domestic civil service who reports directly to the Prime Minister has been passed to another civil servant who does not (at least not as part of their day job).

Sue Gray has a reputation for being independently minded.

(And note: you should be careful of hoping that this reputation means she will be necessarily critical of ministers – for a genuinely independently minded person will also be independent from the loud clamour of ministerial critics.)

But that a civil servant has a personal reputation for being independently minded does not and cannot make them structurally independent.

She is a senior civil servant – but she is not the most senior, not even within her own department of the Cabinet Office.

And so we have a problem – a type of investigation that was envisaged for the very head of the civil service now being done by a more junior colleague.

And she is investigating her own colleagues some of whom may be at the same level as her and some – like Simon Case – more senior.

The investigation is also into special advisers and others who will be close associates of her ministerial bosses.

There has long been a problem with the non-transparent and closed nature of Cabinet Secretary investigations  – but at least they sort-of-made-sense, but this arrangement must be even more unsatisfactory.

But, as this blog recently contended, the politically charged nature now accorded to this investigation would make inappropriate for any particular civil servant, let alone one who is not the Cabinet Secretary.

It is an investigation that ministers are hiding behind to avoid ministerial accountability to the House of Commons, and her report may topple (or ‘clear’) a sitting Prime Minister.

For all her merits, Sue Gray is not – and should not – be a crucial element of the constitution.

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Now we come to the structural problems of the investigation.

And here, even before we come to this investigation’s Terms of Reference, there are a number of issues:-

Gray cannot make a determination as to whether there is criminal liability, as she is not a court.

Gray cannot make an independent assessment of the application of non-legal guidance to her colleagues as she is not independent – and some of those being investigated are more senior in the civil service than she is.

Gray cannot compel testimony and documents – or even full disclosure – from any of those involved.

And Gray cannot determine whether the prime minister or another minister is in breach of the ministerial code, as she is not the prime minister.

None of these are her fault, and none of these are criticisms of any decisions she has made or not made.

These structural issues instead arise simply from the nature of the investigation she has been charged with.

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And now we come to the Terms of Reference.

If you read these carefully then you will see that there is even less scope for there to be any severe criticism published.

Any finding of apparent misconduct by any particular, named civil servant should not feature – for that will be a Human Resources issue (and that is only right, as there needs to be due process).

Here the reference to “the investigations will establish whether individual disciplinary action is warranted” has to be read with “any specific HR action against individuals will remain confidential”  – and so there may be nothing published of particularised substance on any actual breaches, as they will be part of subsequent internal proceedings.

There is mention of making “reference to adherence to the guidance in place at the time” – but this may not mean a great deal.

The word “reference” here can mean little more than the guidance will be read and perhaps mentioned.

There is no express requirement under the Terms of Reference for Gray to apply the guidance to the facts so as to ascertain whether there has been any breaches.

Gray may do so – and if she is independently minded, she may indeed do so – but there is no requirement for her to do so.

All she is required to do so is to “establish swiftly a general understanding of the nature of the gatherings, including attendance, the setting and the purpose”.

Note the “general”.

She can also refer this matter to the police  – but the threshold for what would trigger such a referral is vague.

And without being able to compel evidence, there may not be information provided to her for her to consider making any such referral.

(It is a remarkable feature of all this is how the Metropolitan Police – who can compel evidence – have fettered their own discretion and contracted out this investigation of a civil servant investigating other civil servants – who cannot compel evidence.)

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There are already problems in practice.

Parts of the investigation seem to have been leaked to the press.

And if it is leaking to the press, then presumably it would also be leaking within the civil service.

These apparent leaks are probably not from Gray and her team but from those affected who are being presented with provisional views or updates for their responses (this would be being done for fairness – even though this is not a judicial or even quasi-judicial process – for there is a general rule that those facing criticism in a report should be able to make representations).

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There are also indications that Gray has not been given full information – which is not surprising given the lack of power to compel evidence and the potentially serious consequences for facing scrutiny.

And it may be that the report keeps on delayed while new parties are uncovered.

https://twitter.com/davidallengreen/status/1481776450244165639

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Recent political history – in both the United Kingdom and the United States – has seen many people looking forward to reports that then turn out (at least at first glance) not to have been as critical as many have hoped, from the Hutton report to the Mueller report.

But what is not surprising is that so many of these reports fail to be robustly critical – what is surprising is that any of these reports ever are robustly critical.

And this is not (always) because of the personal failures of those running the inquiries – but because of the structural problems of the inquiries and the ability of those (especially with competent legal advice) to regulate the flow of information.

Garbage In, Garbage Out.

Perhaps the independently minded Sue Gray will be an exception to this general view.

Perhaps notwithstanding the limits of the Terms of Reference and her inability to compel evidence, the report will match the elevated political expectations now placed on it.

Perhaps it will provide an ironic justification for the politicians who have hidden behind the investigation so as to evade accountability to Parliament – because it will genuinely be a report so substantial and far-reaching that it actually should not have been prejudged.

Perhaps.

Or it may be a report that will allow politicians to brief friendly media that they have been ‘cleared’ – without many realising the inherent limits on the investigation to find anyone in breach of anything.

(It is almost as if this investigation was structured in such a way so as to give scope to ministers to leak to the press that they have been ‘cleared’.)

Most likely is that the investigation will, well, simply comply with the Terms of Reference that have been public all along and so will provide merely “a general understanding”.

This will be a recital of facts “of the nature of the gatherings, including attendance, the setting and the purpose” – with “reference” (but maybe not more) to the relevant guidance.

But with no findings of breaches of the law, no names named, no individual culpability found.

This is an investigation that is almost

Just the (general) facts.

If so, the strange thing would be that anyone expected otherwise.

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The Colston Four and the problem (and challenge) of legal commentary – in praise of Secret Barrister and Matthew Scott

10th January 2022

The acquittal of the Colston Four became a significant political issue – so significant that former ministers and government supporters even got to the point of dissing juries altogether.

But where was the best legal commentary – to explain what did (and did not) happen?

On state broadcasters?

On news sites?

No.

It was on social media – in particular, two blogposts done by barristers in their spare time.

One was this explanatory post by the Secret Barrister.

The other was on the blog of Matthew Scott: the actual directions to the jury.

Neither of these barristers had to do this – they volunteered to put this information into the public domain.

Neither of the bloggers did anything that could not be done by a well-resourced legal correspondent at a mainstream news site.

But there are very few legal correspondents anywhere in mainsteam media, and they would not have the time (or the editorial freedom) to provide such information for free to anyone on the internet.

The Secret Barrister and Matthew Scott provide not only an important public service but also fill a gap in what should (and is not) being provided to the public generally by news sites.

We are lucky to have them – and, given the ever-starker limitations on news budgets – we must cherish this volunteerism by legal professionals.

But what happens when such volunteerism comes to an end, for it is no longer viable for legal professionals?

Well.

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The Meghan Markle litigation

8th January 2022

I do not tend to blog and tweet much about the areas of law in which I do most of my professional work as a solicitor: commercial law and media law.

This is for a variety of reasons, including the ability to commentate freely on things where there is no possibility of a conflict of interest.

So that is why I tend to blog and tweet about public law and constitutional matters, where I am less likely to have a conflict of interest.

But from time to time a media law matter comes up which I can commentate on without any concerns for conflicts of interest.

And so this week I was quoted in the Washington Post on the Meghan Markle matter.

The piece is here, and my quote as published was:

 

 

 

My quote as given was:

“The Meghan Markle court victory was not that legally significant. 
“The Mail on Sunday litigated a weak case and they lost it, without even managing to get to trial.  
“The senior editors would have been advised against publication – the Mail on Sunday have very good lawyers – but they chose to publish anyway, knowing the legal risks.
“But the case has immense cultural and media significance. 
“The newspaper chose to fight a weak case, despite the legal problems.  This could only be because they had a non-legal objective. 
“But also important was that Markle decided to press her case, instead of letting it go like other royals would have done. 
“In this way, the case could be a turning point.”

*

The Markle judgments can be found here.

*

I thought it may be of interest to add a little to my quote on this blog.

High-profile litigation often exists on two levels – how it is played out in the media, and what is actually happening as a matter of hard litigation.

And here, there were may reports in the media that framed Markle in a certain way.

But the Mail on Sunday case was always weak at law – and in the end it was so weak that it did not even get to trial.

Weak cases are rarely fought in civil litigation – the weaker side will usually tend to settle as soon as possible.

And so the interesting question is why it was fought – and in the answer to that question will be the genuine significance of this case.

The case is less significant in its detail than in its very existence.

The case itself has almost no legal significance: the applicable law was so obvious that Markle got summary judgment, despite the array of legal skill and talent employed by the newspaper.

But the cultural and media significance is – perhaps – profound.

Something seems to have changed.

But what?

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The Myth of the Dead Cats

9th December 2021

There is a certain Dickensian quality to the unfolding political events in the United Kingdom.

The events of a Christmas past – last Christmas – are illuminating the politics of Christmas present.

And, unlike other wrongs and transgressions by this wretched government, the facts and significance of last year’s Christmas party are readily grasped by the most unpolitical of people.

It has ‘cut through’.

Many people will not empathise with or understand those who may have their citizenship withdrawn, or want to make noisy protests, or want to make a hazardous channel crossing without drowning.

But, just like a day trip to see a castle, people easily understand about a works Christmas party.

This is not to say there are not more fundamentally bad things happening in law and policy at the moment.

This tweet summarises the current illiberal situation well:

The government of the United Kingdom is pushing forward legislation that will enable its officials to kill people without legal consequences, to prohibit meaningful protest, and to summarily remove citizenship from you because of where your family is from.

All this is as sickening and disconcerting as it can be.

But none of this has ‘cut through’.

*

Whenever the government does more than one bad thing at once, somebody somewhere will comment that one of the things is ‘a dead cat’.

This is the phrase to describe a tactic of political distraction.

One of the bad things happening – usually the more trivial – will be described as a cunning misdirection, to distract us from a far less trivial thing.

But.

The thing about ‘a dead cat’ tactic is that it requires basic competence.

It relies on the notion that those in power are capable of doing something that works.

This is a perhaps comforting idea.

The reality is, at least with the current government, that there is no basic competence.

The true situation is that the government is doing lots of bad things at once, all over the place.

This is a scarier predicament.

When one of the bad things gets more public and media attention, it is not because a deliberate political tactic has worked.

It is instead because the thing in question just happens to be more understandable.

That is the only difference.

*

This is a chaotic government.

It is tempting to posit some order or pattern – or conspiracy – as the alternative of absolute disorder is too horrible an idea to contemplate.

Indeed, it is an even more horrible prospect than a dead cat suddenly slammed upon a table.

**

The Great Cat Massacre by Robert Darnton

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“We do not recognise…” – on the increasingly popular evasive phrase used by government press offices

3rd December 2021

One of the joys of dealing with press officers is their insincerity.

They know they are being insincere and evasive, and you know they are being insincere and evasive.

But they are in their role, and you are in yours.

One of the increasing common formulations adopted by press officers is “We do not recognise [x]”.

The phrase is not a denial: it is not being stated that [x] is false.

Nor is it, of course, an admission.

It is something in between.

In this way the phrase is like “We do not admit” used by civil litigators – though in litigation you should only use that phase if the fact is actually outside of your knowledge, even if you do not accept it to be true.

*

“We do not recognise [x]”.

So an alleged thing may be true and unwelcome – but a spokesperson has managed to find something about the thing alleged which means they can avoid admitting it without denying it.

https://twitter.com/davidallengreen/status/1466708215983398913

As a lawyer, I would just then want to ask “well, what do you recognise to be the case?”

Though so deft are press officers at their insincerity and evasion that this clever follow-up will also no doubt be dodged.

And so we have this phrase – joining the likes of “we do not want to get into speculation” and “we do not give a running commentary” – as a means by which government press officers pretend to you (and perhaps to themselves) that there a good reason for not providing the information or confirmation requested.

The shame of it is that government press officers are (or should be) public servants.

The provision of information to the press and the public, in the public interest, is what they are actually being paid to do (and for which many will get civil service pensions and even gongs).

Yet they seem to to take pride in not serving the public interest but the political interests of current ministers.

This uncomfortable truth should be stark and glaring to those who work in government press offices.

But they do not see it.

Perhaps they do not recognise it.

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