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  • How the Trump administration’s “shock and awe” approach has resulted in its litigation being shockingly awful 22nd April 2025
  • How the United States constitutional crisis is intensifying 17th April 2025
  • A note about injunctions in the context of the Abrego Garcia case 14th April 2025
  • How Trump is misusing emergency powers in his tariffs policy 10th April 2025
  • How Trump’s tariffs can be a Force Majeure event for some contracts 7th April 2025
  • The significance of the Wisconsin court election result 2nd April 2025
  • “But what if…?” – constitutional commentary in an age of anxiety 31st March 2025
  • A significant defeat for the Trump government in the federal court of appeal 27th March 2025
  • Reckoning the legal and practical significance of the United States deportations case 25th March 2025
  • Making sense of the Trump-Roberts exchange about impeachment 19th March 2025
  • Understanding what went on in court yesterday in the US deportations case 18th March 2025
  • “Oopsie” – the word that means the United States has now tipped into a constitutional crisis 17th March 2025
  • Oh Canada 16th March 2025
  • Thinking about a revolution 5th March 2025
  • The fog of lawlessness: what we can see – and what we cannot see – in the current confusions in the United States 25th February 2025
  • The president who believes himself a king 23rd February 2025
  • Making sense of what is happening in the United States 18th February 2025
  • The paradox of the Billionaires saying that Court Orders have no value, for without Court Orders there could not be Billionaires 11th February 2025
  • Why Donald Trump is not really “transactional” but anti-transactional 4th February 2025
  • From constitutional drama to constitutional crisis? 1st February 2025
  • Solving the puzzle of why the case of Prince Harry and Lord Watson against News Group Newspapers came to its sudden end 25th January 2025
  • Looking critically at Trump’s flurry of Executive Orders: why we should watch what is done, and not to be distracted by what is said 21st January 2025
  • A third and final post about the ‘Lettuce before Action’ of Elizabeth Truss 18th January 2025
  • Why the Truss “lettuce before action” is worse than you thought – and it has a worrying implication for free speech 17th January 2025
  • Of Indictments and Impeachments, and of Donald Trump – two similar words for two distinct things 16th January 2025
  • Why did the DoJ prosecution of Trump run out of time? 14th January 2025
  • Spiteful governments and simple contract law, a weak threatening letter, and a warning of a regulatory battle ahead 13th January 2025
  • A close look at Truss’s legal threat to Starmer – a glorious but seemingly hopeless cease-and-desist letter 9th January 2025
  • How the lore of New Year defeated the law of New Year – how the English state gave up on insisting the new year started on 25 March 1st January 2025
  • Some of President Carter’s judges can still judge, 44 years later – and so we can see how long Trump’s new nominees will be on the bench 31st December 2024
  • “Twelfth Night Till Candlemas” – the story of a forty-year book-quest and of its remarkable ending 20th December 2024
  • An argument about Assisting Dying – matters of life and death need to be properly regulated by law, and not by official discretion 28th November 2024
  • The illiberalism yet to come: two things not to do, and one thing to do – suggestions on how to avoid mental and emotional exhaustion 18th November 2024
  • New stories for old – making sense of a political-constitutional rupture 14th November 2024
  • The shapes of things to come – some thoughts and speculations on the possibilities of what can happen next 8th November 2024
  • A postcard from the day after an election: capturing a further political-constitutional moment 6th November 2024
  • A postcard from the day of an election – capturing a political-constitutional moment 5th November 2024
  • “…as a matter of law, the house is haunted” – a quick Hallowe’en post about law and lore 31st October 2024
  • Prisons and prisons-of-the-mind – how the biggest barrier to prisons reform is public opinion 28th October 2024
  • A blow against the “alternative remedies” excuse: the UK Supreme Court makes it far harder for regulators to avoid performing their public law duties 22nd October 2024
  • What explains the timing and manner of the Chagos Islands sovereignty deal? 20th October 2024
  • Happy birthday, Supreme Court: the fifteenth anniversary of the United Kingdom’s highest court 1st October 2024
  • Words on the screen – the rise and (relative) fall of text-based social media: why journalists and lawyers on social media may not feel so special again 30th September 2024
  • Political accountability vs policy accountability: how our system of politics and government is geared to avoid or evade accountability for policy 24th September 2024
  • On writing – and not writing – about miscarriages of justice 23rd September 2024
  • Miscarriages of Justice: the Oliver Campbell case 21st September 2024
  • How Taylor Swift’s endorsement of Harris and Walz is a masterpiece of persuasive prose: a songwriter’s practical lesson in written advocacy 11th September 2024
  • Supporting Donald Trump is too much for Richard Cheney 7th September 2024
  • A miscarriage of justice is normally a systems failure, and not because of any conspiracy – the cock-up theory usually explains when things go wrong 30th August 2024
  • Update – what is coming up. 29th August 2024
  • Shamima Begum – and ‘de jure’ vs ‘de facto’ statelessness 21st August 2024
  • Lucy Letby and miscarriages of justice: some words of caution on why we should always be alert to the possibilities of miscarriages of justice 19th August 2024
  • This week’s skirmish between the European Commission and X 17th August 2024
  • What Elon Musk perhaps gets wrong about civil wars being ‘inevitable’ – It is in the nature of civil wars that they are not often predictable 7th August 2024
  • How the criminal justice system deals with a riot 5th August 2024
  • The Lucy Letby case: some thoughts and observations: what should happen when a defence does not put in their own expert evidence (for good reason or bad)? 26th July 2024
  • And out the other side? The possible return of serious people doing serious things in law and policy 10th July 2024
  • What if a parliamentary candidate did not exist? The latest odd constitutional law question which nobody has really thought of asking before 9th July 2024
  • The task before James Timpson: the significance of this welcome appointment – and two of the obstacles that he needs to overcome 8th July 2024
  • How the Met police may be erring in its political insider betting investigation – and why we should be wary of extending “misconduct of public office” to parliamentary matters, even in nod-along cases 28th June 2024
  • What you need to know about commercial regulation, in the sports sector and elsewhere – for there is compliance and there is “compliance” 25th June 2024
  • Seven changes for a better constitution? Some interesting proposals from some good people. 24th June 2024
  • The wrong gong 22nd June 2024
  • The public service of an “Enemy of the People” 22nd June 2024
  • Of majorities and “super-majorities” 21st June 2024
  • The strange omission in the Conservative manifesto: why is there no commitment to repeal the Human Rights Act? 12th June 2024
  • The predicted governing party implosion in historical and constitutional context 11th June 2024
  • Donald Trump is convicted – but it is now the judicial system that may need a good defence strategy 1st June 2024
  • The unwelcome weaponisation of police complaints as part of ordinary politics 31st May 2024
  • Thoughts on the calling of a general election – and on whether our constitutional excitements are coming to an end 29th May 2024
  • Another inquiry report, another massive public policy failure revealed 21st May 2024
  • On how regulating the media is hard – if not impossible – and on why reviving the Leveson Inquiry may not be the best basis for seeing what regulations are now needed 4th May 2024
  • Trump’s case – a view from an English legal perspective 24th April 2024
  • Law and lore, and state failure – the quiet collapse of the county court system in England and Wales 22nd April 2024
  • How the civil justice system forced Hugh Grant to settle – and why an alternative to that system is difficult to conceive 17th April 2024
  • Unpacking the remarkable witness statement of Johnny Mercer – a closer look at the extraordinary evidence put before the Afghan war crimes tribunal 25th March 2024
  • The curious incident of the Afghanistan war crimes statutory inquiry being set up 21st March 2024
  • A close look at the Donelan libel settlement: how did a minister make her department feel exposed to expensive legal liability? 8th March 2024
  • A close look at the law and policy of holding a Northern Ireland border poll – and how the law may shape what will be an essentially political decision 10th February 2024
  • How the government is seeking to change the law on Rwanda so as to disregard the facts 30th January 2024
  • How the next general election in the United Kingdom is now less than a year away 29th January 2024
  • Could the Post Office sue its own former directors and advisers regarding the Horizon scandal? 16th January 2024
  • How the legal system made it so easy for the Post Office to destroy the lives of the sub-postmasters and sub-postmistresses – and how the legal system then made it so hard for them to obtain justice 12th January 2024
  • The coming year: how the parameters of the constitution will shape the politics of 2024 1st January 2024
  • The coming constitutional excitements in the United States 31st December 2023
  • What is often left unsaid in complaints about pesky human rights law and pesky human rights lawyers 15th December 2023
  • A role-reversal? – a footnote to yesterday’s post 1st December 2023
  • The three elements of the Rwanda judgment that show how the United Kingdom government is now boxed in 30th November 2023
  • On yesterday’s Supreme Court judgment on the Rwanda policy 16th November 2023
  • The courts have already deflated the Rwanda policy, regardless of the Supreme Court judgment next Wednesday 10th November 2023
  • The extraordinary newspaper column of the Home Secretary – and its implications 9th November 2023
  • Drafts of history – how the Covid Inquiry, like the Leveson Inquiry, is securing evidence for historians that would otherwise be lost 1st November 2023
  • Proportionality is an incomplete legal concept 25th October 2023
  • Commissioner Breton writes a letter: a post in praise of the one-page formal document 11th October 2023
  • “Computer says guilty” – an introduction to the evidential presumption that computers are operating correctly 30th September 2023
  • COMING UP 23rd September 2023
  • Whatever happened to ‘the best-governed city in the world’? – some footnotes to the article at Prospect on the Birmingham city insolvency 9th September 2023
  • One year on from one thing, sixteen months on from another thing… 8th September 2023
  • What is a section 114 Notice? 7th September 2023
  • Constitutionalism vs constitutionalism – how liberal constitutionalists sometimes misunderstand illiberal constitutionalism 24th August 2023
  • Performative justice and coercion: thinking about coercing convicted defendants to hear their sentences 21st August 2023
  • Of impeachments and indictments – how many of the criminal indictments against Trump are a function of the failure of the impeachment process 15th August 2023
  • A note of caution for those clapping and cheering at the latest indictment of Donald Trump 8th August 2023
  • Witch-hunt (noun) 2nd August 2023
  • Sir Keir Starmer and the Litigation Turn of Mind 31st July 2023

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Category: Media law and intellectual property

Commissioner Breton writes a letter: a post in praise of the one-page formal document

11th October 2023
Thierry Breton is the Commissioner for Internal Market of the European Union and yesterday he sent a letter:

*

You may have strong views – very strong views – on the content of this letter.

But take a moment to admire the form and structure of this letter – and, in particular, its brevity.

It is a misconception that longer formal communications are more powerful than shorter communications.

Indeed, sometimes in legal practice the most forceful communications can comprise only a few sentences.

The skill is to make good points succinctly and plainly.

For as another Frenchman once wrote:

“Je n’ai fait celle-ci plus longue que parce que je n’ai pas eu le loisir de la faire plus courte.”

(This [letter] is long because I did not have enough time to make it short.)

~ Blaise Pascal

*

And, of course, the application of this skill is not limited to formal documents:

 

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 11th October 2023Categories European Union Law and Policy, Media law and intellectual property, social media, Words and Things15 Comments on Commissioner Breton writes a letter: a post in praise of the one-page formal document

Two set-backs for animal welfare law – and a consolation

25th May 2023

While I prepare a detailed post on Boris Johnson and the Cabinet Office lawyers thingie, this is just a quick post to note a couple of setbacks to another interest of this blog: animal welfare law.

*

First, you may recall this blog covering the “Frankenchicken” claim, which I thought was a well-made application for judicial review.

Unfortunately the High Court did not, though the judgment is rather difficult to follow – and I may unpack the judgment at a later date.

But plaudits must go to the Humane League (and, yes, we all know the puns for the 80s pop band) for putting together such an impressively crafted case.

*

Second, late today on a quiet parliamentary sitting, the government announced it was reneging on the Animal Welfare (Kept Animals) Bill – even though it was at an advanced parliamentary stage.

There are news reports on this here and here.

You may recall that the Conservative manifesto for 2019 devoted an entire page to animal welfare, making (specific) commitments:

And you may also recall two senior cabinet ministers recently insisting that the House of Lords had to accept that the (generalised) content of the Conservative manifesto as the “will of the people”:

But it would seem the government picks-and-chooses which of its manifesto commitments are serious enough to threaten the House of Lords with, and which the government cannot even be bothered with so that it can progress its own bill.

The reason for this pulling of a bill appears to be that the government does not feel confident that it can resist amendments that would further protect animal welfare beyond the protections promised in the manifesto.

It is a depressing moment for animal welfare law.

*

On the bright side, however, there is consolation: the great Chris Packham – who does sterling work not only on animal welfare but also neurodiversity – won his libel case, and the judgment is well worth reading.

(The pic above shows him supporting the “Frankenchicken” claim which was coincidently heard at the High Court at same time as his libel claim.)

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 25th May 2023Categories Animal rights, Communications and Media & Law and Policy, Frankenchickens, Legislation and Law-Making, Media law and intellectual property, United Kingdom Law and Policy2 Comments on Two set-backs for animal welfare law – and a consolation

NDAs and the Public Interest – a beginner’s guide for Matt Hancock and others

2nd March 2023

The publication this week by the Daily Telegraph of the WhatsApp messages of Matthew Hancock with several third parties was unusual and striking.

It was so unusual and striking that the first response of many was: surely there must be a law against this sort of thing.

And no doubt Hancock himself thought he was legally protected, having entered into (we are told) a Non Disclosure Agreement (NDA) with Isabel Oakeshott, the ghost writer of his recent book about his experiences as health secretary in dealing with the pandemic.

On available information, it appears the ghost writer has in turn disclosed the messages to the Daily Telegraph, and the newspaper then published a selection of these messages (we are told) without prior notice to Hancock or to any of the third parties with whom Hancock messaged.

The messages are certainly of interest to the public and, given the insights they provide into how government (and the media) dealt with the pandemic – especially in respect of what happened with care homes and testing – the publication of the messages can plausibly be said to be in the public interest.

*

This post now sets out the general law of England and Wales in respect of NDAs and the public interest, and it then will apply that general law to what appears to be the facts of this incident.

In doing so, I have not had sight of the actual NDA which was signed between Hancock and his ghost writer – and, as will become apparent, a great deal can turn on the terms of a NDA.

For although NDA sounds as if it should be an acronym for a generic thing, there are many ways of framing a NDA.

NDA is not, in and of itself, a legal term of art, but instead a label of convenience.

*

To understand NDAs you must first understand what it means not to have a NDA.

If there is not a NDA between two parties there will still be the law of confidentiality.

(Technically, confidentiality is not law but what is called “equity”, which is a set of doctrines and rules which complement law, but I hope I may be permitted to call it law for the purposes of this post.)

Confidentiality usually works as follows: person (A) imparts information to person (B) and when that information has (i) the quality of confidentiality and (ii) been imparted so that it is plain that it is considered confidential, the courts will protect that confidential information when they can.

If tests (i) and (ii) are met then person (B) will be bound to keep the information confidential.

This means that if person (B) wrongly discloses that information to another, or misuses the information, then (A) can obtain an injunction against (B).

(A) can also, depending on circumstances, obtain another remedy against (B) such as an “account of profits” of the monies made by (B) in wrongly disclosing or misusing that information.

Generally, the law of confidentiality is about the remedy of injunctions.

This is because injunctions are the supposed means that confidential information can remain confidential: the cork is put back into the bottle.

*

So given there is already a general law of confidentiality, why do parties have NDAs?

There are many reasons.

First, NDAs can serve to identify and list the information which is confidential, so that there is no need to rely on the general test of whether the information has the quality of confidential information.

Second, the NDA will show beyond serious doubt that the parties were aware that the information was imparted on a confidential basis.

These two reasons supercharge the basic law of confidentiality so that the wronged party can show a court the two tests are met at law.

But there are other reasons why parties may want a NDA.

NDAs can provide the financial terms of the parties: in essence how much is being paid to the parties in respect of the exchange of information.

A strong NDA will also provide the financial consequences of what will happen if a party breaches the NDA, such as an indemnity or damages.

A NDA can also provide for the intellectual property position of the imparted information – for example, whether the receiving party also has a licence to use the information and for what purposes.

But.

Generally NDAs are signed as a ceremonial act of trust between the parties, a rite of passage.

Often people will ask for and sign NDAs without much consideration of their contents, so that they can progress with a commercial or media relationship.

NDAs also often suit both parties as a convenient shield, and a NDA can be used as the complete reason not to disclose something.

*

NDAs, however, are not magical devices.

They do not, in and of themselves as signed pieces of paper, stop an unwanted disclosure – especially if trust breaks down.

*

If party (B) wants to breach a NDA then there will often be little that (A) can do to stop them.

This is especially the case if (A) is not given notice of the breach.

For, as set out above, the law of confidentiality is generally about the remedy of an injunction.

And as injunctions are discretionary remedies of the court, they will not usually be granted if the court order would be futile or academic.

It would be too late to put the cork back in the bottle.

*

So if (A) cannot obtain an injunction to restrain publication or some other wrongful disclosure by B, what is there for (A) to do?

Well.

This will come down to the other terms of the NDA – and often with NDAs there will not be other terms.

Sometimes, especially when it is foreseeable that party (B) will breach the NDA, there can be financial terms that would deter (B) from doing so.

For example, there could be structured payments that would not be payable in the event of any breach.

Or there can be an indemnity against the costs of dealing with the consequences of a breach.

But often the NDA will be silent, for – as set out above – the NDA is usually a convenient shield or a ceremonial ornament.

*

And now we come to the public interest.

Even if (A) has been given notice of an imminent breach, if (B) pleads the public interest, then the court may not give (A) an injunction.

All (A) would then have, if they have been careful, would be other terms of the NDA.

The legal position was recently summarised by a judge:

“The modern (i.e. post-[Human Rights Act 1998]) approach as to the public interest defence is set out in the Court of Appeal’s judgment in Associated Newspapers Limited v HRH Prince of Wales […].

“The four main tenets can be summarised as follows:

“(1)  There is an important public interest in the observance of duties of confidence since those who engage employees, or who enter into other relationships that carry with them a duty of confidence, ought to be able to be confident that they can disclose, without risk of wider publication, information that it is legitimate for them to wish to keep confidential (ibid at [67]).

“(2)  The modern approach as to the circumstances in which the public interest in publication can be said to override a duty of confidence is whether a fetter of the right of freedom of expression is, in the particular circumstances, “necessary in a democratic society”.  The test is one of proportionality: the court will need to consider whether, having regard to the nature of the information and all the relevant circumstances, it is legitimate for the owner of the information to seek to keep it confidential or whether it is in the public interest that the information should be made public (ibid at [67]).

“(3)  It is arguable that a duty of confidentiality that has been expressly assumed under contract carries more weight, when balanced against the restriction of the right of freedom of expression, than a duty of confidentiality that is not buttressed by express agreement; but the extent to which a contract adds to the weight of duty of confidence arising out of a confidential relationship will depend upon the facts of the individual case (ibid at [69] citing Campbell v Frisbee [2003] ICR 141).

“(4)  Thus, in essence, the Court must consider whether, having regard to the nature of the information and all the relevant circumstances, it is legitimate for the owner of the information to seek to keep it confidential or whether it is in the public interest that the information should be made public.”

*

Applying these four tests in the instant case, Hancock would say that as the messages had been disclosed to the ghost writer under a contract, this “carries more weight, when balanced against the restriction of the right of freedom of expression, than a duty of confidentiality that is not buttressed by express agreement”.

Hancock would also say there was an “important public interest in the observance of duties of confidence since those […] who enter into other relationships that carry with them a duty of confidence, ought to be able to be confident that they can disclose, without risk of wider publication, information that it is legitimate for them to wish to keep confidential”.

But.

The ghost writer would say “having regard to the nature of the information and all the relevant circumstances […] it is in the public interest that the information should be made public”.

Here the ghost writer would also be able to point to the material being supplied for a book on the pandemic, as well as to the contents of the messages.

*

The Daily Telegraph did not sign the NDA and so would not be bound by its terms.

Hancock’s remedies, if any, against the Daily Telegraph would be under the general law of confidentiality, or perhaps under the law of misuse of private information, data protection law, or even copyright.

But whichever way he framed the claim, he would face (in some form) a public interest defence.

The position of third parties with whom Hancock messaged, however, may be stronger.

And one expects the Daily Telegraph legal team has been very careful in respect of third party information it is disclosing from the messages.

The Daily Telegraph must have had very bullish and robust legal advice on the public interest.

They also felt confident enough in their public interest defence not to give Hancock notice of publication.

*

Hancock is today quoted as saying:

“There is absolutely no public interest case for this huge breach.  All the materials for the book have already been made available to the inquiry, which is the right, and only, place for everything to be considered properly and the right lessons to be learned.  As we have seen, releasing them in this way gives a partial, biased account to suit an anti-lockdown agenda.”

If Hancock sincerely believes that there is absolutely no public interest defence then presumably there is no bar to him seeking some form of legal remedy against either the ghost writer or the newspaper – for example to restrain publication of messages so far unpublished.

He could even seek to obtain an account of profits from the ghost writer or the newspaper if he believes they are acting uncocionably.

So far it appears that he may not take legal action, he also has said today (emphasis added):

“I will respond to the substance in the appropriate place, at the inquiry, so that we can properly learn all the lessons based on a full and objective understanding of what happened in the pandemic, and why.”

If he believes that, one may wonder why he published a book seeking to give his side of what happened before the inquiry.

*

NDAs are usually ornaments or shields.

Unless they are tightly drafted and prudently structured, they offer little protection in practice to an imparting party if the other party deliberately breaches the NDA without notice.

As such NDAs are often articles of trust.

And here is the paradox: given NDAs often depend on trust, they usually are not needed, and if there is lack of trust, then the NDA can make little difference.

On the available information, Hancock was naive to believe a NDA would give firm, still less absolute, protection against onward disclosure of the messages.

And on the available information, there does appear to be a public interest in disclosure to the public of the messages – at least to the extent that they show public policy making and implementation in action.

As Hancock himself has published a book which has been described as misleading based on the same material, then he may struggle to get redress in respect disclosures which expose his own misleading account.

*

We do not know what were the terms of the NDA – and so we cannot pass comment on whether the NDA was well drafted for its purpose or not.

But we can evaluate the wisdom of Hancock in thinking any NDA, on any terms, would protect him against onward disclosure of the messages by a counter-party willing to breach the NDA on the basis of the public interest.

It was a daft thing for him to do.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 2nd March 20232nd March 2023Categories Contract and Commercial Law, Coronavirus - COVID-19, Media law and intellectual property, United Kingdom Law and Policy36 Comments on NDAs and the Public Interest – a beginner’s guide for Matt Hancock and others

A latter-day tale of the unexpected: Roald Dahl and the “censors”

24th February 2023

With one sterling exception, I never much cared for Roald Dahl’s stuff growing up.

The children’s books were, for me, twee and their supposed gruesomeness tame.

I much preferred reading a certain kind of second world war novel which you found in certain cardboard boxes at certain stalls in Birmingham’s rag market.

(And these were a lot worse than anything written by Dahl.)

The one sterling exception was not any of Dahl’s children’s books, but a television programme – the theme tune of which still mildly disconcerts even today.

Tales of the Unexpected was a wonder.

Not all the tales were Dahl’s – but every short episode was tightly scripted, wonderfully acted by star actors, and nicely plotted.

They were the televisual truth of Pascal’s old adage that he was was writing something long, because he did not have enough time to write it short.

Along with Rod Serling’s Twilight Zone, they were examples of what you could repeatedly achieve with short-form drama on television, if you put your mind to it.

And, of course, as the title of the programme averred, there were twists.

Sometimes you could see the twist coming, and you could feel smug when other viewers fell for stereotypes and knee-jerk reactions.

But the twists were usually satisfying, all the same.

*

Now we come to this week’s news, about the “censorship” of Dahl’s children’s books.

Like the early scenes of an episode of Tales of Unexpected, we have been led to believe a thing has happened.

We have then been encouraged to let our fears race, and to worry about outcomes and possible implications.

And in this excitement we have been helped along by glamorous celebrities playing their roles, whom you instinctively trust.

Earnest authors and pundits have appeared on our television screens to tell us of the “woke” menace.

Commentators pitched for and filed their 800 or 1,100 word articles about the terror of the censors – articles which pretty much all wrote themselves.

You can understand why so many of us hid behind our metaphorical sofas.

*

And then the twist.

There was never any censorship, all along.

All that happened is that a capitalistic publisher, presumably with the consent of the Dahl estate, issued alternate versions of certain texts so as to generate purchases which otherwise may not have been made.

None of the original texts are out of print.

None of the original texts were going to go out of print.

This was just an attempt by a publisher to appeal to an additional audience, who may not care for the original texts.

There was no censor, no censure, no clamour.

The alarmed audience for this short drama have been misled.

So the moral for this tale is that never get carried away with a panic, even – perhaps especially – when it is an author you once enjoyed (or think you enjoyed) reading yourself.

And now…

…the closing credits for this blogpost:

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

Posted on 24th February 202324th February 2023Categories Media law and intellectual property46 Comments on A latter-day tale of the unexpected: Roald Dahl and the “censors”

Musk and the three ways his acquisition of Twitter shows a remarkable approach to legal risk

11th November 2022

The acquisition of Twitter by Elon Musk is fascinating – at least to watch from the outside.

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I am not an American lawyer, and I have not seen any of the legal or other documents related to the acquisition.

Like many of you, I only know what I have read in the media and watched play out on Twitter.

But from the information available to me, and based on twenty years’ experience as an English commercial lawyer, there are three elements of this acquisition which may show us things about Musk’s approach to the issue of legal risk.

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The first element is the agreement to purchase, which Musk reportedly sought to get out of.

It would appear that he was unable (or unwilling) to do so, and so had to complete the purchase.

There were two things here which seemed odd.

The first odd thing was that an experienced business person like Musk, who presumably had access to legal advice, could even get seemingly trapped by such an agreement.

The second odd thing was his use of issues such as the number of bot accounts as a basis to get out of the transaction.

It seemed to me that such issues would normally go to warranties than to anything more substantial.

(In this context, a warranty would be a promise that a certain state of affairs existed which would allow a cash adjustment to the purchase price if the warranty was breached – and so the ultimate price of the purchase would be adjusted to what it would have been had the correct state of affairs been known.)

The issues he raised did not appear to me to be convincing, and many better placed observers were not convinced either.

It looked like Musk had put himself into a commercial situation he could not get out.

Few business people, following advice, would have allowed this to happen.

It was a curious situation.

*

The second element of this acquisition is the reported disdain for regulatory and other legal risks by Musk and his new managers once Twitter was purchased.

On this, the New York Times has reported:

Musk “was used to going to court and paying penalties, and was not worried about the risks”.

This is an extraordinary position for any experienced business person – but it does accord to his approach to risk as described in the first element above.

Some of the regulatory and other legal risks now facing Twitter are not trivial, from data privacy to employment rights.

The approach described by the New York Times is not even cavalier – it is outright denial and disdain.

What a curiouser and curiouser situation.

*

The third element is the very structure of the acquisition.

Musk may be conducting himself online as if he were a buffoon, but those lenders and investors also financing the transaction are serious people.

And if for some reason those lenders and investors were easily impressed by a charismatic figure, their legal advisers certainly would not be.

The position of these lenders and investors here is the greatest puzzle of all.

What were they thinking?

Reuters tells us these are the lenders and investors:

Even if Musk was in denial or disdainful about legal or other risk, these lenders and investors would not be.

Again, according to Reuters:

“Twitter faces interest payments totaling close to $1.2 billion in the next 12 months on the debt that Musk piled on it, following a string of interest rate hikes by the Federal Reserve, an analysis of the financing terms disclosed in regulatory filings shows.

“The payments exceed Twitter’s most recently disclosed cash flow, which amounted to $1.1 billion as of the end of June, according to financial disclosures Twitter made before Musk took it private on Oct. 27.”

Even if Musk’s antics were not foreseeable, the state of Twitter would have been obvious when lenders and investors did their due diligence.

Lenders and investors proceeded even though they were aware of the precarious financial state of Twitter.

Why would they do this?

Perhaps they were confident that Musk would suddenly turn the platform around and generate revenues in excess of costs.

Perhaps they took a view on the risks and thought they could just write it off if the investment went bad.

Or perhaps they were less interested in any return on investment than in the security they could enforce if the transaction went bad.

Some lenders plan on the basis that an investment will go well – and some lenders plan on the basis that it will not.

If Twitter defaults on the payments, it will be interesting – fascinating – to see what security is in place, if any, and what is enforced, if anything is enforced.

Even if Musk somehow though this transaction was free of risk, those who co-financed the transaction would not have done.

What will happen next?

The situation gets curiouser.

*

Musk’s acquisition of Twitter is almost as if it were taking place in a magical business world where legal and other risks do not really exist.

A fabulous world devised by, say, Italo Calvino rather than our mundane real world of contracts and regulations.

Perhaps the fantasy will hold, and Musk will pull off a great commercial success.

Perhaps.

But us trudging legal sorts are used to seeing the downsides.

And the utter lack in this transaction of any visible risk-based approach by Musk is remarkable.

If this transaction escapes the world of fantasy, then Musk and Twitter will need to brace, brace.

***

Thank you for reading – and this blog needs your support to carry on doing these posts., even though I cannot offer you a BLUE TICK.

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***

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Posted on 11th November 202211th November 2022Categories Media law and intellectual property, Regulatory law, social media31 Comments on Musk and the three ways his acquisition of Twitter shows a remarkable approach to legal risk

How defamation is like trespass

1st August 2022

Writing about the Wagatha Christie case reminded me of this thought I once had.

Defamation is an odd tort, and to my mind it is a lot like trespass to land, which is another odd tort.

Odd, as in distinctive.

When a person goes on the land of another, and the land owner wants to sue, the land owner has to prove they own the land and that there is/was an intrusion.

It is then for the defendant to prove that they had a right to enter the land, such as a licence.

Similarly when a person defames the reputation of another, and the defamed person wants to sue, the defamed person has to prove that they have a reputation in the jurisdiction and that the defaming statement related to them.

It is then for the defendant to prove that what they say is true or a fair opinion or some other defence.

Trespasser/defamer; land/reputation; and the onus being on the defendant to justify the intrusion/statement.

It is almost as if the law conceives of a reputation almost as a property right, and the presumption is against any rightful intrusion/defamation.

The cry of “get orf my land” transforms into “get orf my reputation”.

*

One criticism often made of libel law is that it is on the defendant to prove a defence.

The claimant does have to prove certain things: that they have a reputation in the jurisdiction; that there was defamatory statement published to the third party; and that the defamatory statement caused (or is likely to cause) serious harm.

So it is not true that a libel claimant does not have to prove anything.

But once these things are shown, it swings to the defendant to prove their defence, and not for the claimant to disprove it.

That this is a practical problem for defendants is obvious.

But the question is whether it could be done any other way?

Just as it would not be for the landowner to prove an intruder has not got a licence, should it be for the defamed person to disprove a defamatory statement of fact?

Surely the person defaming another should have their factual basis in place before defaming another?

Until and unless this problem of the reverse burden of proof is addressed, then many attempts at libel reform will not succeed

This is because many of the problems of libel in practice flow from this key shift in who has to prove what.

 

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Posted on 1st August 20221st August 2022Categories Litigation, Media law and intellectual property26 Comments on How defamation is like trespass

A guide to today’s “Wagatha Christie” judgment – a case that should not have gone to trial

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.

*

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

*

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.

*

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.

*

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.

*

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.

*

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.)

*

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.

*

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.

*

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.

*

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.

*

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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Posted on 29th July 202229th July 2022Categories Courts and the administration of justice, Litigation, Media law and intellectual property42 Comments on A guide to today’s “Wagatha Christie” judgment – a case that should not have gone to trial

The importance of access to good legal advice: how Johnson had only one penalty while junior Downing Street staff had many

23rd May 2022

Some of the best lawyers in the country work for those who often state publicly their disdain for lawyers.

Some of the best media lawyers work for the tabloid press who insult lawyers on front pages and blame them for many social and political ills.

And some of the best regulatory and procedural lawyers help populist politicians and pundits get out of all sorts of scrapes.

None of this is surprising – being part of the tabloid media or being a populist politician or pundit is a high-risk activity.

Such figures will regularly face civil and/or criminal liability in what they want to say or do, but thanks to their good lawyers they are kept safe.

The irony is, of course, that the stock lines-to-take of such figures include ridicule and hostility towards the lawyers who help others.

Those lawyers are ‘activists’ and invariably ‘left-wing’ – some are even ‘human rights’ lawyers.

In other words: the populists dislike lawyers that keep other sorts of people from legal harm, while taking the benefit of lawyers who keep populists safe.

From time-to-time you can see this discrepancy in practical examples.

During the phone-hacking cases, certain publishers took the benefit of outstanding legal advice, while sometimes letting individual reporters and their sources fend for themselves.

And last week we saw the same with the Downing Street parties and the now-closed Metropolitan police investigation.

It would appear that senior Downing Street figures escaped penalties while junior staff incurred them.

And it seems to be the situation that this discrepancy may be because senior figures had the the benefit of deft legal advice in how to complete (and not complete) the questionnaires, while more junior staff provided answers that had  not had the benefit of such advice.

This sort of ‘getting off on a technicality’ would – if it were about migrants or other marginalised group, or loud protesters – be met by emphatic criticism from populist politicians and the tabloid press.

But as it is the leaders of a populist government, then there is hardly a word.

There is nothing wrong with such senior figures having access to competent legal advice.

The issue is not that some have access to good lawyers, but that not everyone does.

Everybody facing criminal liability should have access to the legal advice of the standard that assisted Boris Johnson in ‘Partygate’.

And when you next see denouncements of ‘activist’ lawyers, remind yourself that those denouncements often come from those with ready access to the best quality legal advice, when those that need help from ‘activist’ lawyers often do not.

**

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Posted on 23rd May 202223rd May 2022Categories Communications and Media & Law and Policy, Coronavirus - COVID-19, Criminal Law, Human Rights and Civil Liberties, Legal practice, Liberalism and Illiberalism, Media law, Media law and intellectual property, Police and Policing, United Kingdom Law and Policy24 Comments on The importance of access to good legal advice: how Johnson had only one penalty while junior Downing Street staff had many

Blue ticks on Twitter – the problems with regulation and self-regulation

31st March 2022

Some people who care about these things are upset when they don’t have a ‘blue tick’ verification mark on their Twitter account.

Some people who care even more about these things are upset when, for whatever reason, their cherished ‘blue tick’ is removed.

I happen to have a high-follower Twitter account – where I tweet about things where credibility and indeed verification can be important – but I do not have and do not want a ‘blue tick’.

(Indeed, I have refused one.)

Why?

Isn’t credibility and verification important?

Well.

There are different ways of having credibility and different methods of verification.

I tweet (and blog) about the law, but I rarely say expressly that I am legally qualified.

This is because I want the content of my commentary itself to have credibility, rather than to appeal to authority.

If I have to resort to ‘actually I am a solicitor’ then something has gone astray in my commentary.

Either I get the law right or I get the law wrong – and in neither case should having ‘lawyer’ or ‘solicitor’ in my bio make any difference, still less a ‘blue tick’ against my name.

(I have a similar problem with lawyers who insist on having ‘QC’ on their social media account, as if their tweets are court pleadings, or formal advices or opinions.)

*

Indeed, in my opinion the ‘blue tick’ can confer a false sense of authority.

A view can be taken that a thing must be true or fair – just because it has been tweeted (or re-tweeted) by a ‘blue tick’ account.

Yet nasty and vile tweets can be tweeted by ‘blue tick’ accounts, as well as factually false information.

This is because a ‘blue tick’ is not actually a badge of credibility or verification, but – too often – a substitute for one.

Such an objection, however, does not mean that anything goes.

Instead, it means people should be critical with what they engage on social media.

Ask questions: who follows an account, who does an account frequently engage with, what are the replies and quote-tweets of a tweet, does the tweeter link to sources – and so on.

Forming your own view, in other words – rather than nodding-along with a false badge of authority.

*

I know the easy response to this will be for some to say that I misunderstand social media – and that people do not want to think for themselves.

But – we are still in the early history of social media and internet-based global communications, and we should not mistake what social media is like now with what it may become.

We could all shout at strangers in the street or on the bus – but almost nobody does, even though the opportunity is there.

And similarly people may become more measured and sensible in how they interact on social media.

The best regulation, in my view, comes from – where possible – empowering people to make informed decisions.

And the arbitrary and non-transparent system of ‘blue ticks’ – which confer respectability on some unpleasant and/or false tweets – is the means of encouraging people to not make informed decisions, rather than making them.

***

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Posted on 31st March 2022Categories Communications and Media & Law and Policy, Media law and intellectual property32 Comments on Blue ticks on Twitter – the problems with regulation and self-regulation

SLAPP and English courts – some preliminary issues

21st March 2022

SLAPP – strategic litigation against public participation – is a new-ish name for an age-old problem.

Here is L. Ron Hubbard in 1955 advocating law suits against those who were using Scientology materials without authorisation:

“The purpose of the suit is to harass and discourage rather than to win. The law can be used very easily to harass, and enough harassment on somebody who is simply on the thin edge anyway, well knowing that he is not authorized, will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly”

(The Scientologist: a Manual on the Dissemination of Material, page 157)

*

SLAPP is, of course, a pejorative term (as this blog recently averred) – but, for want of a better term, is the best name we have got for a certain thing.

The problem with SLAPP being a pejorative term is that, just as one person’s terrorist can be another person’s freedom fighter, one person’s SLAPP case is another person’s legitimate attempt to defend their reputation and/or privacy rights.

Few if any claimants will say expressly that their case is a SLAPP case – not many are as brazen as L. Ron Hubbard.

And it is possible that what one side considers to be a SLAPP case will genuinely not be considered to be a SLAPP case by the other side.

That said, SLAPP as a term has two useful qualities.

First, it is not limited to any one area of law – for example defamation – and so it implicitly recognises that various areas of law can be (mis)used – not only defamation but also misuse of private information, data protection, confidentiality, intellectual property rights, and so on.

Second, it indicates that certain decisions are being made strategically – or at least, tactically (though TLASS is a less handy acronym) – about the purpose to which law is being used.

Another problem, however, with SLAPP as a term is that its American origins may mislead people into thinking all anti-SLAPP legislation is the same.

In fact, much of what constitutes anti-SLAPP reform in the United States is already part of English law, including the ready availability of costs sanctions and early opportunities for meritless cases to be struck out.

There is no single anti-SLAPP reform that fits all jurisdictions.

So as long as the strengths and weaknesses of SLAPP as a term are borne in mind, it is the best description we have got of a certain thing.

*

But – what is that thing?

Well.

One thing it usually is not about is the law or procedural rules being broken by lawyers or their clients.

In almost all SLAPP cases, the lawyers are using the laws and court procedures available to them: the issue is the ulterior purpose to which those laws and court procedures is being put.

This is why, in my view, attempts to ‘name and shame’ the lawyers involved are misconceived.

(Though, for completeness, I know and deal with many of those who are involved.)

The lawyers that have so far been publicly named are but a sub-set of the lawyers competent and willing to take on such claims.

And – frankly – you do not need parliamentary privilege to ‘name and shame’ the lawyers: all you need to do is look at the case reports to see who they are, and at their own websites to see how they promote their practices.

I happen to be a media defence lawyer (among other things) – acting for journalists, campaigners, and politicians – and I chose not to act for claimants in these sort of cases, but that is entirely a personal choice.

In my experience of seeing dozens of threatening letters (of varying quality), almost all the threats are within the scope of law and practice as it stands.

And if a threatening letter did not come from one firm, I can imagine pretty much the same sort of letter coming from a dozen other firms.

The problem is with the law and practice, and so – if you sincerely want to solve the problem – that is where the solution will be.

Although therapeutic, ‘naming and shaming’ the lawyers involved is a cul-de-sac.

*

Another thing to note is that, in England, SLAPP is not just about costs – even if the amounts involved can be eye-watering.

Yes, London claimant lawyers are expensive – too expensive.

But: American lawyers are expensive too, sometimes even more expensive than English lawyers.

Media lawyers in other jurisdictions are also high-charging and highly paid.

Yet, it is in England that certain cases are brought – and threatened.

This is because the problem with SLAPP cases in London is not just the costs, but how those costs can be easily weaponised as part of of a legal threat.

London litigation is often not a game of thrones, but a game of costs.

The dynamics of many cases will come down to costs, and how costs consequences can be inflicted and deflected.

And how this happens comes down to the structure and practice of the relevant law.

*

But perhaps the biggest difficulty about discussing SLAPP in England is that the discussion can sometimes seem abstract.

SLAPP is a bad thing, and nice people are against bad things.

Let’s boo at SLAPP!

But the challenge is to make any SLAPP reform work practically – to make a difference in actual cases.

There are a number of ways law and practice can be misused, and so any reform needs to be set against actual cases to see if the reform would make any practical difference.

One thing I recall from the campaign which led to the Defamation Act 2013 is that the key case for mobilising support – the misconceived and illiberal claim brought by the British Chiropractic Association against science writer Simon Singh – turned out not to be directly relevant to the legislation that was then passed.

Little in that Act would stop another such case being brought again – and indeed it was the court’s own decision in that case, and not any legislation, that has stopped further similar claims.

There can be a practical disconnect between cases that attract public concerns and the reforms then promoted for dealing with such concerns.

That is why this blog is going to look over the next few days at a ‘data-set’ of SLAPP cases, to see what the actual problems are and to see what, if any, solutions can be put in place to stop similar cases being threatened and brought.

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In the meantime, I would suggest anyone interested in SLAPP, and what practical reforms can be implemented to prevent such cases, look at the following:-

– the transcript of the oral evidence at the foreign affairs select committee on the use of strategic lawsuits against public participation (or watch it here);

– the excellent and comprehensive work by Susan Coughtrie and the Foreign Policy Centre on SLAPPS – including this policy paper;

– this House of Commons library briefing on SLAPP; and

– the UK government’s recent call for evidence on SLAPP.

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Posted on 21st March 202222nd March 2022Categories Communications and Media & Law and Policy, Legislation and Law-Making, Litigation, Media law, Media law and intellectual property, Ministry of Justice, SLAPSS, Transparency, United Kingdom Law and Policy11 Comments on SLAPP and English courts – some preliminary issues

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