Court Cases and Social Media

By Matt Noble

social-widgetsLawyers being lawyers, and the law being the law, the arrival of social media provided legal practitioners of all persuasions with a fantastic opportunity to wax lyrical on almost every topic in the public eye. From Made In Chelsea (Gary Slapper is an avid watcher), to Bradley Manning, to the Magna Carta’s birthday, to Mukul Chawla QC’s almost obsession with Bruce Springsteen, never an opportunity is missed to impart their wisdom.

But what really gets lawyers going, quite rightly, is a juicy trial. Many will have heard of the Twitter Joke Trial (or #twitterjoketrial to use the correct annotation), otherwise known as R v Paul Chambers, before becoming Chambers v DPP on appeal to the High Court in 2012. Twitter Joke Trial concerned the prosecution and conviction of Chambers under s. 127 of the Communications Act 2003, following a tweet in which he made (abundantly) clear his frustration at the closure of Robin Hood Airport in early January 2010.

This case will be covered in a later article, because although perhaps it is the trial which attracted most attention on social media, it is an earlier (although eventually overlapping) libel case which shows social media activism in a more nascent form.

Simon Singh MBE is a journalist and author who, to put it almost insultingly simple, writes about science. In April 2008 the Guardian published an article by him concerning chiropractic, which contained various criticisms of the practice. The British Chiropractic Association (BCA) sued Singh personally for libel concerning Singh’s comments that ‘[it] is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments’, after refusing the Guardian’s invitation to provide a reply for publication.

The news of the BCA’s action created what is now a somewhat hackneyed term: a social media storm. A blogger named Alan Henness discovered that the BCA’s rules required chiropractors to abide by previous Advertising Standards Authority rulings relating to claims about the efficacy of treatments. Word spread and chiropractors’ websites were cross-referenced. This led to a quarter of all UK chiropractors being placed under investigation by the BCA.

At the trial of preliminary issues in May 2009, Singh pleaded fair comment (that a reasonable person could hold such an opinion) and justification (that it was true). Mr Justice Eady ruled that Singh’s above statement was ‘the plainest allegation of dishonesty’ and that it was not therefore fair comment. He also ruled that Singh’s statements were purported statements of fact and not comment.

The case drew together a disparate group of people – academics, lawyers, comedians, bloggers – who had become concerned by recent libel cases and the chilling effect on freedom of speech, and although not pertinent to this case, the issue of ‘libel tourism’. In 2005 for example Saudi billionaire Sheikh Khalid bin Mahfouz sued US author Rachel Ehrenfeld in an English court over accusations make in her book Funding Evil. The book in question had not been published in the UK but 23 copies had been bought online. Ehrenfeld was protected in the US by the First Amendment. In a much criticised judgment she lost; Eady was the trial judge.

The BCA action was publicised by such personalities as comedian and blogger Dave Gorman, MP Evan Davis, and Professor Brian Cox. A Facebook group was set up in support of Singh which attracted over 5,000 members. Richard Dawkins spoke up for Singh on the need for libel reform at a Lib Dem conference. Other supporters included Stephen Fry, Ricky Gervais and Harry Hill.

Lawyer and blogger David Allen Green was one of a number of commentators who spoke of the ‘reverse burden of proof’ in English libel trials, lamenting the ease of launching libel actions without having to show that damage had been suffered. Singh also had the support of charity Sense About Science, English PEN and Index on Censorship. The three groups launched the Libel Reform Campaign in December 2009.
Following the May 2009 hearing, Singh made a paper application for permission to appeal in June, which was refused. In August he applied for an oral hearing, which was granted in October. In granting permission to appeal, Mr Justice Eady’s earlier ruling was described by Lord Justice Laws as ‘legally erroneous’. Eady, the judge said, had conflated the meaning of the phrase used by Singh, with the issue of whether the article was presented as fact or fair comment. That the article had been written in good faith was not in question.

At the appeal hearing at the Court of Appeal in February 2010 Lord Chief Justice Judge, Master of the Rolls Lord Neuberger and Lord Justice Sedley heard legal argument on whether Singh’s article was comment or fact. Singh’s solicitor Robert Dougans noted at the time the significance of Judge LCJ’s remarks in court concerning his surprise at the BCA’s refusal of a right of reply and the waste of time and effort of both parties.

In April the Court of Appeal handed down their judgment that the appeal must be allowed. This meant that Singh would be able to rely on the defence of fair comment. He had spent £200,000 thus far in legal fees. Lawyer Mark Lewis described it as not a victory, but rather a milestone in a journey that should never have started.

Two weeks later the BCA served a notice of discontinuance on Singh, ending their action against him. It was estimated at the time that after recovery of costs Singh would be £20,000 out of pocket.

In the intervening period between Singh’s first appeal application and the Court of Appeal’s ruling, the three main political parties all committed to libel reform. The pace of action did not prevent further libel issues arising involving Citizens Advice, Nature, and bloggers discussing the Burzynski Clinic, as well as Richard Dawkins and Amazon online reviews.Eventually, after a bit of drama in the House of Lords with a last minute amendment proposed by Lord Puttnam (eventually dropped), and a bit more drama following another amendment tabled by libel lawyer Edward Garnier QC in the Commons (not put to a vote), the Defamation Act was finally passed in April 2013. Under s. 1 of the Act, a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the claimant’s reputation. For a body that trades for profit, serious harm is not shown unless the statement has caused or is likely to cause serious financial loss.
Simon Singh was pleased. The bloggers and comedians and scientists were pleased. The lawyers on social media were pleased for a while, and then realised that Made In Chelsea was on, and Bruce Springsteen tour dates had just been announced.
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