Lord McAlpine and Twitter Libel: Does failing to sue when a libel is first published raise a defence of waiver, estoppel or acquiescence?

The recent media scandal involving British peer, Lord McAlpine (pictured above) who threatened to sue the BBC, ITV and thousands of Twitter users over false accusations of pedophilia is discussed over at Inforrm’s Blog:

As we pointed out last week, Lord McAlpine’s reputation was severely damaged by the event surrounding the ill-conceivedNewsnight broadcast of 2 November 2012.That damage was caused in part by the publication on Twitter of material which linked him to the unidentified individual mentioned in the broadcast.  Lord McAlpine was plainly entitled to have his reputation restored.  This was, in practice, substantially achieved by the apology given by the BBC on 10 November 2012.

In addition, Lord McAlpine was entitled to substantial damages to compensate him for the remaining damage to his reputation, his distress at the accusation and to provide him with “vindication”.  The BBC has agreed to pay him £185,000 – a sum which seems well in excess of the “going rate” that would be awarded by a court.  It appears that this week the BBC will join in a “Statement in Open Court” to further express its regret and apologies.

However, it is clear that Lord McAlpine is not satisfied with the apologies and compensation he has received from the BBC but intends to pursue ITV “for £500,000″and to bring claims against “10,000 Twitter users“.

American and Canadian readers should note that the UK consultation on the draft Defamation Bill underway applies only to England and Wales;  Scotland and Ireland have distinct defamation laws.  England does not have a ‘single publication’ rule, so that anyone who republishes or reproduces a libel ( a published false statement that is damaging to a person’s reputation) may also be held liable for the damage caused to the person’s reputation.  In Canada, hyperlinking to a defamatory article or blog post does not constitute republication, unless the alleged libel is endorsed or repeated. [See my previous post discussing the Supreme Court of Canada decision in Crookes v. Newton here].

Mr. Justice Tugendhat of the England and Wales High Court (Queen’s Bench Division) in  Adelson & Anor v Anderson & Anor [2011] EWHC 2497 (QB) (07 October 2011) neatly summarizes the differing approaches to freedom of speech and right to reputation (including public figures) in the US and England as follows:

73. As the opening words of §4102 [Securing the Protection of our Enduring and Established Constitutional Heritage Act now codified at 28 USCA §§ 4101 to 4105] .make clear, the legislation in the USA arises out of the First Amendment to the Constitution of the USA. In 1964 the US Supreme Court as New York Times Co v Sullivan (1964) 376 U.S. 254 recognised that the First Amendment applied to state laws on defamation. The Court addressed the problems raised by defamation in the context of discussion of matters of public interest by holding that greater protection to freedom of speech is required where the claimant is a public figure than the protection given hitherto by the laws of the United States, or by the laws of many other jurisdictions in the world which recognise freedom of speech. Since 1964 the law of defamation in many other common law jurisdictions has developed to give increased protection to freedom of speech in the context of defamation, but without adopting the same approach as the US Supreme Court. The reasons why other jurisdictions have adopted approaches that differ from the approach adopted in the USA have been considered in a number of judgments, including, for example: the High Court of Australia in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, the Supreme Court of Canada in Hill v. Church of Scientology of Toronto [1995] 2 SCR 1130 and WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 SCR 420; the Court of Appeal of New Zealand in Lange v Atkinson [1998] 3 NZLR 424; [2000] NZCA 95 and the Defamation Act 2009 s.26 of the Republic of Ireland. The House of Lords in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 explained why English law should adopt a different approach. English law does not recognise any distinction based on the personality of the claimant as a public figure. It distinguishes cases by the degree of public interest in the content or subject matter of the speech, and the occasion of the publication.

74. An English court should express no view about the law of the USA. Each jurisdiction has its own laws to protect freedom of expression. These are established by its own democratic procedures, and reflect the Treaty obligations that each has undertaken. The Treaty obligations of the UK include those set out in the European Convention on Human Rights, and the UN Convention on Civil and Political Rights, both of which the UK has ratified. Both of these follow the model of the Universal Declaration of Human Rights (which does give rise to treaty obligations, but was proclaimed by the General Assembly of the United Nations on 10 December 1948). These texts recognise a right to freedom of speech, but they also recognise the right to reputation, which is not recognised as a constitutional right in the US Bill of Rights (and state Constitutions). The ECHR, the Universal Declaration and the UN Covenant give no automatic priority to freedom of speech. See Arts 8 and 10 of the ECHR (as interpreted in the Strasbourg jurisprudence), Arts 12 and 19 of the Universal Declaration, and Arts 17 and 19 of the UN Covenant.

Of course, it is always best to err on the side of caution, even if you are blogging or tweeting from the U.S. or Canada.

That said, there is one legal issue that no one else (as far as I can tell) has addressed in relation to Lord McAlpine’s libel claim against Twitter users.

Recall that Lord McAlpine also has threatened a libel action against anyone who tweeted or retweeted (RT’ed) the BBC Newsnight program, ITV broadcast, or the tweets by British celebrities such as Sally Bercow, the wife of the Speaker of the Commons, and George Monbiot, a columnist for the Guardian.

There are stories circulating on various blogs and on Twitter referring to similar, if not identical, allegations made against Lord McAlpine back in the 90’s by a now defunct British magazine and a well-known British writer and public speaker with a penchant for conspiracy theories. [note: I am deliberately not providing links to the articles in fairness to my UK readers. If you really want to know more, then Google it yourself].

Some have asked, perhaps rhetorically, why Lord McAlpine did not sue anyone before when these allegations, now established to be false, were made?

My question is: Does failing to sue when a libel is first published raise a defence of waiver, estoppel or acquiescence?  

In Tesla Motors Ltd v British Broadcasting Corporation [2011] EWHC 2760 (QB), Mr. Justice Tugendhat, in considering a motion for an order striking the plaintiff’s claim for malicious falsehood, also addressed the BBC’s defences of abuse of process and acquiescence, waiver and estoppel, noting that it was possible to “envisage circumstances in which a claimant might be held to have lost any right to complain about publications that had occurred before he issued proceedings, but nevertheless not have lost the right to complain about, and seek  to prevent, future publications. “

The learned judge concludes:

83. There is under English law (as it is at present at least) no single publication rule. It is not difficult to imagine circumstances in which a publication is made repeatedly over a substantial period of time during which the publisher reasonably believes that it is true, or that it is in the public interest to make the publication. But there may come a time when that position is manifestly no longer sustainable. What had been thought to be a fact may turn out not to have been one. For example a conviction may be overturned on appeal after a long delay.

84. Further, it is most unusual for a defence of consent to be raised in the context of libel or a related causes of action. One reason for this is that the law on consent generally requires that the person alleged to have given the consent should have done so freely and with full information. Moreover, consent when given is generally not for an unlimited period, and may be withdrawn at any time. And even if it is for a fixed period, as for example it may be under a contract, it does not necessarily follow that it is wholly irrevocable.

85. These points could in theory always have arisen in relation to libel and related torts. However, what gives them their novelty is that cases such as the present one did not in practice arise. Until very recently a newspaper publication, or a radio or television broadcast, would either not be repeated at all, or would be repeated only infrequently. The position is now quite different, when a programme originally broadcast in December 2008 is available to be watched on a website by anyone at anytime into the indefinite future.

Lord McAlpine may well have a plausible reason to not have sued to vindicate his reputation well over a decade ago. I have no prurient interest in dredging up the past. However, what is of the public interest, is whether the libel claims against 10,000 tweeters should proceed or not and whether the traditional approach to republication needs to be modernized to reflect the ephemeral nature of Twitter and other social media platforms.

Consider Lord McAlpine’s views expressed in a 2000 interview in Australia, while promoting his book, The New Machiavelli: The Art of Politics in Business:

 Can this be the same person who wrote The New Machiavelli: The Art of Politics in Business – a guide on how to succeed in modern politics by being vile? A book on how to manipulate people for the “greater good”?

McAlpine’s advice on dealing with the media? Spread false defeat to gain public sympathy; or false accusation and then arrange for it to be exposed as such – so the accuser will forever be treated with suspicion.

If someone now republishes the originally defamatory magazine article, are they too” liable for libel”, so to speak? One hopes not, but without a single publication rule, there is no end in sight.  It remains unsettled whether the equitable doctrine of laches ( the “unreasonable delay pursuing a right or claim…in a way that prejudices the [opposing] party”, Black’s Law Dictionary, 9th ed.) even applies.

Tags: , , , , , ,

8 Responses to “Lord McAlpine and Twitter Libel: Does failing to sue when a libel is first published raise a defence of waiver, estoppel or acquiescence?”

  1. Helen121 Says:

    Did you see this post here? http://www.twitlonger.com/show/k2gg1r
    Would Syn0nymph be correct in either of these two points?

  2. Antonin I. Pribetic Says:

    Thanks. I posted a reply comment to SynOnymph a moment ago.

  3. goggzilla Says:

    UK law tends to favour the wealthy.

  4. Antonin I. Pribetic Says:

    Or, “How much justice can you afford”.

  5. Antonin I. Pribetic Says:

    Or, “How much justice can you afford?”.

  6. goggzilla Says:

    Exactly! The law, in its majesty allows both rich and poor alike to starve.

  7. McAlpine v. Bercow and a New Era of ‘Twitter Chill’ | Charon QC Says:

    […] BBC, ITV and thousands of Twitter users over false accusations of pedophilia in a post entitled: Lord McAlpine and Twitter Libel: Does failing to sue when a libel is first published raise a defence… In the post I […]

  8. Report #24: McAlpine v. Bercow and a New Era of ‘Twitter Chill’ | Charon QC's UK Law Tour Says:

    […] BBC, ITV and thousands of Twitter users over false accusations of pedophilia in a post entitled: Lord McAlpine and Twitter Libel: Does failing to sue when a libel is first published raise a defence… In the post I […]

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: