09 Jul 9 July 2021
In this issue of zoom-in brief, the ‘Wagatha Christie’ case continues; Russian tennis star Yana Sizikova threatens to sue over match-fixing allegations; judgment is given in the long-running Lachaux case, with guidance on what courts expect when media defendants run public interest defences to libel claims; and new guidance is published for journos about tackling online abuse.
Defamation: Latest highlights in the ‘Wagatha Christie’ case
The latest stage in the libel action in what has been dubbed the ‘Wagatha Christie’ case, has reached court. Rebekah Vardy is suing fellow ‘Wag’ Colleen Rooney over a post on Instagram and Twitter about trying to find out who had been providing stories about her private life to the Sun newspaper. Ms Rooney told the story of how she had published fake stories about herself visible only to certain people on Instagram, reasoning that if those appeared in a newspaper she would have identified who was leaking them. In the denouement, she said ‘It’s ……………. Rebekah Vardy’s account.’ Ms Vardy denied providing stories to the Sun and sued Ms Rooney in libel. Rooney is defending the claim, saying both that the allegations are true, and that their publication was in the public interest.
The latest court hearing saw Vardy take a number of shots at Rooney’s pleaded Defence, with some hitting the target, but others were found to have missed by the judge.
Ms Rooney claims Ms Vardy provided stories to the Sun based on three particular Instagram posts that were only visible to her, one of which related to Rooney participating in an upcoming TV series. Vardy sought summary judgment on that aspect of the claim, but the judge refused, finding that it is not the type of issue the court should grant summary judgment on.
Vardy also sought to strike out various parts of Rooney’s Defence. She succeeded in striking out 6 paragraphs, but failed in relation to another 6. The judge struck out parts of the claim relating to Vardy’s alleged self-promotion in the press, finding that promoting stories about oneself is different to leaking stories about another person’s private life and therefore not relevant to or probative of the allegation that Vardy provided stories about Rooney to the press. The judge also struck out allegations about settlement negotiations in the libel claim being leaked to the press, as they were peripheral to the main issues. However, she refused to strike out allegations that Vardy was close to Sun journalists, that the Sun had given positive coverage to Vardy and that she may be the author of the newspaper’s “The Secret Wag” column. Those issues are now likely to be determined at trial.
Vardy’s attempt to strike out Rooney’s public interest defence also failed, although Rooney accepted that it needed to be clarified by amendment, as only matters known at the time of the post can be relevant to the public interest defence.
The case continues. ZOOM-IN will continue to report as it progresses.
Defamation (France) - Russian tennis player threatens claim over arrest
Yana Sizikova, a Russian tennis player arrested in Paris following her appearance in the French Open, has threatened to bring a legal complaint over the statements to the authorities which led to her arrest.
Sizikova was arrested at the tournament on 3 June this year as part of a match-fixing investigation dating back to October 2020 and relating to her loss of a match at the previous year’s French Open.
Atthe 2020 tournament, bookmakers issued alerts for abnormal betting patterns during the player’s first-round women’s doubles match alongside Madison Brengle of the United States, which the pair lost 7-6, 6-4 to the Romanian duo of Andreea Mitu and Patricia Maria Tig.
Hundreds of thousands of euros were reportedly wagered on a break of serve at 2-2 in set two, a service game of Sizikova’s in which she lost three of the points conceded, including two double faults, as she lost her serve to love.
Sizikova responded at the time to rumours circulating on the internet by contacting the Women’s Tennis Association to complain about the defamatory nature of the match-fixing allegations.
At the time of the arrest the player’s lawyer announced that she denied the charges against her but was unsure whether she would be allowed to leave France after being released from custody.
The alleged offences for which Sizikova was arrested could lead to five years in prison and a €500,000 fine if she is found guilty of sports corruption.
On 2 July, her lawyer announced that she had responded by filing a claim for defamation and slanderous denunciation at the Paris Public Prosecutor’s Office
He explained that by making the complaint she intended to have her own status as a victim in the affair recognised and to pursue those who had started the rumours which undermined her reputation.
Under the French Penal Code, “slanderous denunciation” is a claim which is similar to malicious prosecution in England, and which allows someone who has been the subject of a false report to the authorities to take action against the person responsible.
In English law, complaints to the Police are immune from defamation claims and malicious prosecution is the only route for a legal complaint against the perpetrator.
Defamation – Public interest defence fails at trial
The long-running and complex libel case brought by Bruno Lachaux against the publishers of The Independent and The Evening Standard has concluded with a judgment awarding him £120,000 in damages and dismissing the defendants’ defences.
The judgment by Nicklin J, which considers a number of important issues relevant to all journalists who seek to rely on a defence of public interest under s.4 of the Defamation Act 2013, was handed down on 1 July.
It followed a four day trial in February and March, which finally took place seven years after the articles complained of were published in January and February 2014.
In the interim, the case went to the Supreme Court over the issue of the requirement for a claimant to show “serious harm” under s.1 of the Defamation Act 2013, following a preliminary trial of that issue in 2015.
Mr Lachaux’s claim was originally brought against the publishers of articles in the Huffington Post, as well as the two newspapers, but the claim against the Huffington Post was settled.
In 2014, the three publishers reported on the details of a dispute between Mr Lachaux, a French citizen who presently lives in the United Arab Emirates, and his ex-wife Afsana Shukur (“Afsana”), a British citizen, with whom he has a child, Louis, who was born in Dubai.
The context for the articles was the breakdown of Mr Lachaux and Afsana’s marriage and the proceedings which followed in the UAE courts, which led to Mr Lachaux taking possession of Louis under a custody order.
In the defamation claim, the Court had previously found that the articles in The Independent and The Evening Standard bore defamatory meanings, including that Mr Lachaux had been violent towards Afsana, had obtained custody on a false basis, and also initiated a prosecution of Afsana in the UAE, which was founded upon a false allegation of abduction.
After publication of the articles, Afsana brought a claim in the Family Division of the High Court in London seeking an order for contact with Louis, in which the Judge rejected the majority of her case, and did not accept either that she was a victim of abuse, threats and violence, or that the proceedings in the UAE were unfair.
Following the resolution of the Family Court claim, both of the articles were very briefly taken down from the publishers’ websites before being reinstated – with amendments.
The newspapers did not seek to defend the articles as true but instead relied solely on the defence under s.4 of the Defamation Act 2013, which replaced the “Reynolds” defence which previously protected “responsible journalism”.
The section provides that it is a defence to an action for defamation for the defendant to show that the statement complained of was, or formed part of, a statement on a matter of public interest and that the defendant reasonably believed that publishing the statement complained of was in the public interest.
Under the statute, the Court must also have regard to all the circumstances of the case.
There are a number of points relevant to investigative and public interest journalism which emerge from the judgment, including the need for the press to offer the subject of serious allegations an opportunity to respond to them before publication.
Two areas of particular interest are those which relate to journalistic record keeping and the requirement to update publications in light of changing circumstances.
In relation to the first of these, there is a requirement arising from the various external and internal codes governing press conduct that journalists keep contemporaneous notes or records of their activities, and in particular of the public interest rationale for any given action.
The judgment makes clear that it is realistic for a Court to expect documents to be available that record (or at least shed some light on) decisions taken as to what was identified, at the time, as the public interest justification for publication.
It draws a comparison with other areas, where professionals such as doctors, lawyers, or architects are asked to account for events that have happened and decisions they have taken, where the Courts are used to seeing contemporaneous records.
The Judge points out that while the Court cannot require a journalist to make records, the burden of establishing a public interest defence under s.4 Defamation Act 2013 lies upon the defendant, and its prospects of success are enhanced by being able to produce contemporaneous records of the decision(s) taken.
In this case, there were very few contemporaneous documents that could shed light on the events that led to publication, and no documents that recorded, or even referred to, the decision-making process that led to publication.
In relation to the second, both newspapers failed to demonstrate that any belief in the public interest was reasonable, taking into account the circumstances, including the failure to contact Mr Lachaux to seek his response before publication took place.
Following publication, however, there were two key developments which the Judge found should have led the newspapers to make changes to the articles: first, they were sent letters of claim setting out a detailed response from Mr Lachaux to the allegations they contained; and, second, the findings made by the Family Court in this country, which effectively required them to carry out a “substantial re-write” if the articles were to continue to be published.
While TV journalists are more familiar than the press with regulatory compliance, and may be less likely to approach publication of a story and its aftermath in the way the newspapers did in this case, the judgment contains valuable lessons on both of these issues, and on the kind of difficulties a media defendant may face if it has to take a public interest defence to trial
New guidance for journalists –“Combatting Online Harassment and Abuse: A Legal Guide for Journalists in England and Wales”
New guidance has been published containing information for journalists about the options available for tackling harassment and abuse they may face online.
The guide was commissioned by the MLA and DCMS as part of the work of the National Committee for the Safety of Journalists which is taking steps to ensure that journalists in the UK are able to operate free from threats and violence.
See link here: Combatting Online Harassment and Abuse: A Legal Guide for Journalists in England and Wales
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