Libel more damaging if it has potential to "go viral", court rules

The case could have a large effect on freedom of speech on sites like Twitter.

Thanks to a recent Court of Appeal ruling, Twitter could soon be far from a realm for the free expression we are supposedly entitled to as citizens of the EU. The Times last week published a law report from the case of Chris Cairns, New Zealand cricketer who was falsely accused of match fixing on Twitter. (False accusations on Twitter - very 2012). What’s interesting about this judgement is that damages were upheld not only due to the false nature of what was claimed, but because of the rumour’s potential to have gone viral. Ergo, the more widely spread the defamatory statement, the more damages should be awarded.

If this judgement is latched on to and the case ultimately sets a precedent, it is unclear what method would be used to decide on the level of damages. The ubiquitous nature of the internet and Twitter in particular means that word spreads, usually beyond an individual’s control, making this seem an obscure way of assessing damages. Perhaps the claimant could get a pound for every retweet?

The basis behind the ruling makes sense; it was, after all, taken from a dictum in the 1990 case of Slipper v BBC that stated “defamatory statements are objectionable not least because of their propensity to percolate through underground channels and contaminate hidden springs”. The problem is that in 1990 the web was only just taking off, and modern social networking was decades away. The principle has been taken and distorted to apply to an entirely different world, where consequences are certainly more severe.

The internet is modern society’s vehicle for free speech, and is essential for a democratic society. Jonathan Coad previously raised the question in his recent article for the New Statesman whether or not it is right to regulate social networks in the same way as national publications. The framework legislation dates back to 1996, so it is arguable that even these are outdated parameters for our changed society.

Equilibrium must be achieved. There is a balance between the Article 10 right to free speech and the equally important entitlement to a fair reputation, but with England being renowned for its exceedingly claimant-friendly libel laws it is worrying that this judgement may tip the balance and ultimately end up deterring free expression across social networking sites.

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Leader: Theresa May and the resurgence of the state

More than any of her recent predecessors, the Prime Minister seems willing to challenge the economic and political orthodoxies of the past 35 years.

Theresa May entered office in more tumultuous circumstances than any other prime minister since 1945. The UK’s vote to leave the European Union was a remarkable rebuke to the political and business establishment and an outcome for which few had prepared. Mrs May recognised that the result was more than a revolt against Brussels. It reflected a deeper alienation and discontent. Britain’s inequalities of wealth and opportunity, its regional imbalances and its distrusted political class all contributed to the Remain campaign’s ­defeat. As she said in her speech in Birmingham on 11 July: “Make no mistake, the referendum was a vote to leave the European Union, but it was also a vote for serious change.”

When the financial crisis struck in 2007-2008, David Cameron, then leader of the opposition, was caught out. His optimistic, liberal Conservative vision, predicated on permanent economic growth, was ill-suited to recession and his embrace of austerity tainted his “modernising” project. From that moment, the purpose of his premiership was never clear. At times, austerity was presented as an act of pragmatic bookkeeping; at others, as a quest to shrink the state permanently.

By contrast, although Mrs May cautiously supported Remain, the Leave vote reinforced, rather than contradicted, her world-view. As long ago as March 2013, in the speech that signalled her leadership ambitions, she spoke of the need to confront “vested interests in the private sector” and embrace “a more strategic role” for the state. Mrs May has long insisted on the need to limit free movement of people within the ­European Union, and anticipated the causes of the Leave vote. The referendum result made the national reckoning that she had desired inevitable.

More than any of her recent predecessors, the Prime Minister seems willing to challenge the economic and political orthodoxies of the past 35 years. She has promised worker representation on company boards, binding shareholder votes on executive pay, improved corporate governance and stricter controls on foreign takeovers.

The shadow chancellor, John McDonnell, has set the ­Labour Party on a similar course, stating in his conference speech that the “winds of globalisation” are “blowing against the belief in the free market and in favour of intervention”. He pointedly criticised governments which did not try to save their domestic steel industries as China dumped cheap steel on to global markets.

We welcome this new mood in politics. As John Gray wrote in our “New Times” special issue last week, by reasserting the role of the state as the final guarantor of social ­cohesion, Mrs May “has broken with the neoliberal model that has ruled British politics since the 1980s”.

The Prime Minister has avoided the hyperactive style of many new leaders, but she has deviated from David Cameron’s agenda in several crucial respects. The target of a national Budget surplus by 2020 was rightly jettisoned (although Mrs May has emphasised her commitment to “living within our means”). Chancellor Philip Hammond’s Autumn Statement on 23 November will be the first test of the government’s ­fiscal boldness. Historically low borrowing costs have strengthened the pre-existing case for infrastructure investment to support growth and spread prosperity.

The greatest political ­challenge facing Mrs May is to manage the divisions within her party. She and her government must maintain adequate access to the European single market, while also gaining meaningful control of immigration. Her statist economic leanings are already being resisted by the free-market fundamentalists on her benches. Like all prime ministers, Mrs May must balance the desire for clarity with the need for unity.

“Brexit means Brexit,” she has repeatedly stated, underlining her commitment to end the UK’s 43-year European
affair. If Mrs May is to be a successful and even transformative prime minister, she must also prove that “serious change” means serious change and a determination to create a society that does not only benefit the fortunate few. 

This article first appeared in the 29 September 2016 issue of the New Statesman, May’s new Tories