On the subject of libel damages

Lawyers for Lord McAlpine are demanding that ITV pays more in libel damages than the BBC over false claims linking him to child sex abuse.

The broadcaster has been given until this afternoon to respond to a demand to pay damages to the former Conservative Party treasurer. He accepted £185,000 plus costs from the BBC last week over a Newsnight report that the corporation admitted had been broadcast without undertaking “basic journalistic checks”.

A spokesman for Lord McAlpine said it was “quite clear” ITV would have to pay significantly more after Phillip Schofield, the co-host of This Morning, handed David Cameron live on air a list of names of alleged abusers that was briefly visible to viewers Lord McAlpine’s spokesman said that the peer had restricted the demand for compensation from the BBC because he was conscious that licence-payers’ money was involved. The same situation did not apply to his action against the commercial broadcaster. “This was also done in broad daylight in a premeditated way in front of the Prime Minister. It was that programme that prompted Lord McAlpine to come out with his statement,” the spokesman said.

The peer, who is in poor health, issued a statement on November 9 that denounced “wholly false and seriously defamatory” suggestions that he had been involved in the paedophile scandal at a children’s home in North Wales in the 1970s and 1980s.

ITV has issued written warnings to Mr Schofield and four members of the programme’s production team. A spokesman for the broadcaster said that it had received a letter from solicitors for Lord McAlpine and would be responding.

The actor and comedian Alan Davies is among thousands of Twitter users facing libel claims for linking the peer to the scandal.

I can\’t actually recall where I read it. But someone, yesterday, was pointing out a very interesting legal fact.

When there is an obvious case of widespread libel, each and every instance of such a libel is not considered separately. They are, for want of a better word, cumulative. More specifically, damages are cumulative.

Each and every person who libelled, who repeated it, are not treated as being the one and sole libeller. Rather, all are treated as having committed the one offence.

Purely as an example, say that the damge to a reputation was worth damages of £10 million (one might think this a reasonable enough sum actually, it being higher than any other set of libel damages ever). It is all who have libelled together who should then cough up £10 million collectively. Not, as some might assume, £10 million each.

No, they\’re not jointly and severally liable or anything, but that\’s still a very interesting point, don\’t you think?

23 comments on “On the subject of libel damages

  1. George Takoma – “I also wonder what the genuine lingering damage to reputation is when the clearing of his name has been so rapid and with such high profile.”

    But this story has been around for a while. His name has come up before. Always with a retraction. It has not worked. So some really exemplary damages seem called for here. And not only because I would happily see everyone who repeated it bankrupted.

    Although that helps.

  2. PaulB – “And this one suggests the BBC may have paid over the odds.”

    It is my money, not their’s, so why wouldn’t they? But over the odds is an interesting concept. They fired a guy for this. And paid him more in extra compensation than they paid Lord McAlpine. Not paid him more. They paid him a lot more. But the extra they did not have to pay but did anyway was still more than they paid Lord McA. Their sense of priorities seems a little off base and perhaps a stinging legal settlement would make them think properly.

  3. Does the letter of the law matter here? Surely none of the offending parties would be so foolish as to attempt to fight the claim rather than settle, would they?

  4. The BBC paid Entwhistle over around a million to go away, the settlement with McAlpine seems cheap by comparison. One reason for settling quickly would be to avoid any court case, I doubt the BBC would have come out of it well. I suspect political malice was a major factor in the BBC’s smear.

  5. The BBC payoff to McAlpine is probably significantly less than the BBC’s own legal fees had they chosen to fight it.

    So Much For Subtlety,

    “But this story has been around for a while. His name has come up before. Always with a retraction.”

    Apparently not, if some comments on the internet (haha) which say David Icke put that allegation in print in a book more than 10 years ago are true.

    If you choose not to sue everyone does that weaken your case?

  6. I think we should also bear in mind that the useless Entwistle was also responsible for the sub Blue Peter debacle over the Queens Jubilee pageant. I am sure said David Icke would have a conspiracy theory suitable to point out how he was first (briefly) given his hearts’s desire before having it ripped away from him in a display of public humiliation. Don’t diss her Maj!

  7. Julia M

    If I were him I wouldn’t give a damn about public opinion, where were the public when this libel was gaining traction ? lapping it up for the most part.

  8. The BBC had to put the fire out quick on this one and they have done: I would think that they think they’ve got off quite lightly. ITV will settle quick too, the aggravating features – Schofield’s flourishing ambush of Dave – being considerable.

    I am still not quite sure, though, on what basis the BBC settled. Lord McA was not identified on Newsnight, so I assume his lawyers went after the corporation on the basis that it could be a class libel or that there would be “jigsaw” identification and the whole thing was wrong in any case.

    Lord McA is right to pursue the tweeters. Each RT is a fresh publication. If nothing else, it’ll put the fear of God into people who think’s its fine to casually and defame, and it isn’t. Those who wriggle (Mrs Bercow) can expect to be stung, since trying to be a clever arse with libel briefs is remembered in costs and damages…make that punitive damages.

  9. So far as I can tell, he hasn’t been damaged. So how are damages payable? And how are they assessed? Has he actually lost £185000?

    And isn’t Steven Messham the one who ought to be paying anyway? He made the allegation. The BBC only repeated it.

  10. And isn’t Steven Messham the one who ought to be paying anyway? He made the allegation.

    Or the policeman who falsely identified his abuser as McAlpine. He might have made that up, of course, but I don’t know why lawyers and journalists haven’t been pursuing the story.

  11. Mr Messham is a victim of abuse and there is no mileage in suing him. McA’s lawyers will have taken the view that the man has suffered enough. Also, there would be no point in chasing someone with no assets.

    Regarding the policeman, I very much doubt he will ever be identified.

  12. John Price,

    My understanding is that pretty much all defences against libel based on the idea that “we didn’t actually name him as such” have, to use technical legal term, casu a viburnum in inferno.

    This hasn’t stopped people trying it through the ages – from spelling out the name backwards, to anagrams, you name it. Most such strategies work once or twice before being squashed. Then the fact that they are useless defences gets included in case law. If you name someone only as being part of a group, the group has to be quite large for you to be safe from a libel claim.

    If the indirect naming can actually lead to the man on the Clapham omnibus being able to find out who it was, then he was named, and that’s that.

  13. So far as I can tell, he hasn’t been damaged. So how are damages payable? And how are they assessed? Has he actually lost £185000?

    It’s not just the notional cost of Lord McAlpine’s reputation, but the wider legal costs on both sides and the ongoing reputational damage to the BBC.

    Given all of the above £185,000 is probably a bargain for the BBC, especially as it is the innocent license payer that foots the bill.

    Sally Bercow is just a gobby blonde whose only claim to fame is that the short-arsed hypocrite she is married to is the speaker of the house of commons.

    I’d tup her though…

  14. Thornavis: “If I were him I wouldn’t give a damn about public opinion, where were the public when this libel was gaining traction ? lapping it up for the most part.”

    Maybe, but a RT is not always a sign that you agree with the tweeter – it can be used (and probably was) to indicate where someone’s crossed the line, as with Bercow’s ‘innocent face’ tweet…

  15. Natalie,

    Here are the defences as I understand them – and memory is very shaky: I learnt all this stuff 30 odd years ago and some of it has fallen away.

    http://en.wikipedia.org/wiki/Defamation#Defences

    Basically, you need to be speaking in Parliament or a court, to be stating something that is provable and to be acting without malice and in the public interest – whatever that it.

    People writing anagrams etc would be on very shaky ground because the test is whether what is said or written exposes the person about whom it is said or written to hatred, ridicule and contempt, damaging their reputations in the minds of right-thinking people – whatever they are.

    The allegation against Lord McA is or course horrifying and a major problem in itself, let alone that was untrue. The difficulty all the tweeters and re tweeters will have is in showing that they were not in some way motivated by malice. I very much doubt in the end that the vast, vast majority will get anywhere near a court, though Mrs B still might unless she starts listening to the good advice she is undoubtedly getting. That’s the thing about defamation though – people have fits of high-mindedness and try to defend the indefensible. And of course the supposed defamers are sometimes right but still get a caning – Jeffrey Archer’s being the best known case.

    It’s about it stopped, since it isn’t a good way to do public discourse.

  16. The fact that McAlpine didn’t sue in the past doesn’t mean that the allegation are true. Sometimes you don’t sue because you don’t want to increase the publicity for something that is not that widely known. It was originally published in the Scallywag but that would have been a very low circulation magazine and suing them would have just given them loads of publicity. Streisand effect anyone?

  17. Gareth @9: If David Icke wrote in one of his books that things fall down, it would take me a week of rigorous experimentation before I felt safe taking off the suction cap shoes.

  18. According to Twitter, tweeps with less than 500 followers will be able to settle for an apology plus a donation (£5 has been mentioned previously) and admin fee. Tweeps with more than 500 followers can expect libel action (presumably being named on a single libel case).

    It’s also being said that all the damages are being donated to rape charities.

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