Category: Media law and intellectual property

How defamation is like trespass

1st August 2022

Writing about the Wagatha Christie case reminded me of this thought I once had.

Defamation is an odd tort, and to my mind it is a lot like trespass to land, which is another odd tort.

Odd, as in distinctive.

When a person goes on the land of another, and the land owner wants to sue, the land owner has to prove they own the land and that there is/was an intrusion.

It is then for the defendant to prove that they had a right to enter the land, such as a licence.

Similarly when a person defames the reputation of another, and the defamed person wants to sue, the defamed person has to prove that they have a reputation in the jurisdiction and that the defaming statement related to them.

It is then for the defendant to prove that what they say is true or a fair opinion or some other defence.

Trespasser/defamer; land/reputation; and the onus being on the defendant to justify the intrusion/statement.

It is almost as if the law conceives of a reputation almost as a property right, and the presumption is against any rightful intrusion/defamation.

The cry of “get orf my land” transforms into “get orf my reputation”.

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One criticism often made of libel law is that it is on the defendant to prove a defence.

The claimant does have to prove certain things: that they have a reputation in the jurisdiction; that there was defamatory statement published to the third party; and that the defamatory statement caused (or is likely to cause) serious harm.

So it is not true that a libel claimant does not have to prove anything.

But once these things are shown, it swings to the defendant to prove their defence, and not for the claimant to disprove it.

That this is a practical problem for defendants is obvious.

But the question is whether it could be done any other way?

Just as it would not be for the landowner to prove an intruder has not got a licence, should it be for the defamed person to disprove a defamatory statement of fact?

Surely the person defaming another should have their factual basis in place before defaming another?

Until and unless this problem of the reverse burden of proof is addressed, then many attempts at libel reform will not succeed

This is because many of the problems of libel in practice flow from this key shift in who has to prove what.

 

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A guide to today’s “Wagatha Christie” judgment – a case that should not have gone to trial

29th July 2022

Later today, at noon in the United Kingdom, the so-called “Wagatha Christie” libel judgment will be handed down by the High Court in London.

As I happen to practise in media law, I thought this may be a useful moment to explain some things about defamation law in general as well about this (for many) entertaining case in particular.

For there is one glaringly obvious feature of this case, whatever the result and regardless of how it has added to the gaiety of the nation.

This is a case that should never have gone to trial.

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On 9 October 2019, the United Kingdom was still a member of the European Union, Boris Johnson had only recently become Prime Minister, nobody had heard of COVID-19, and Coleen Rooney tweeted the following:

The tweet is still there, and she also published this on Instagram and Facebook.

This tweet followed another one from earlier that year:

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Now, the United Kingdom has left the European Union, Johnson is about to depart as Prime Minister, pandemic lockdowns have come and gone, and we are today finally to find out what, if any, legal liability Rooney has for publishing this statement.

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Rebekah Vardy was not not happy with the statement – which was seen by millions.

The watching public were highly amused, and the impressive detective work set out in the statement led to Rooney being dubbed “Wagatha Christie”.

It appears that Rooney sought to settle the case at this early stage.

According to a news report during the case in The Sun that referred to a witness statement of Rooney:

That May 2020 date may be significant, as it seems to be an offer to settle before the claim was even issued.

If so, that pre-action attempt to settle was unsuccessful.

For on 12 June 2020 Vardy issued a claim in libel against Rooney.

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Libel is a complex and, for some, counter-intuitive area of law.

In a claim for libel, the claimant has to (in general) show two things.

The first is that there was a publication in writing (or another permanent form) to a third party – and here there is no doubt.

And the second is that the publication is defamatory of the claimant, that the average person reading the statement would think badly of the claimant – and here, again, there was no doubt.

Indeed, there was no dispute between the parties that the statement – or what lawyers call “the words complained of” – was defamatory.

And once the claimant has shown these two things then (again in general) the onus switches to the defendant to show that the statement is true, or honest opinion, in the public interest, or was said on a privileged occasion, such as in court or in parliament.

In this way, it is for the defendant to do the expensive spade work of showing that they can lawfully make the allegation, and not for the claimant to disprove the allegation.

So here the burden was on Rooney to show her detective work was sound and her conclusion correct, and not Vardy to show it was unsound.

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But.

What is the meaning of the words complained of?

The meaning is important as it would, in turn, frame what Rooney would have to show to defend this claim.

And so this would be the first matter for a judge to decide – and that was to be in November 2020.

Here it is worth noting that according to the news report above, Rooney sought a second time to settle this case, in October 2020 before that hearing, and she was again unsuccessful.

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You may think that the meaning of the words complained of was obvious.

Oh no.

This was a matter of dispute.

Rooney (and her lawyers) contended that the meaning was that:

“there are reasonable grounds to suspect that the Claimant was responsible for consistently passing on information about the Defendant’s private Instagram posts and stories to The Sun newspaper.”

Here Rooney (and her lawyers) emphasised the references to it being Vardy’s account, rather than Vardy directly.

Vardy (and her lawyers) in turn contended that the words complained of meant:

“that the Claimant has consistently and repeatedly betrayed the Defendant’s trust over several years by leaking the Defendant’s private and personal Instagram posts and stories for publication in the Sun Newspaper including a story about gender selection in Mexico; a story about the Defendant returning to TV; and a story about the basement flooding in the Defendant’s new house.”

Vardy’s contended meaning would be harder for Rooney to prove.

At a preliminary hearing in November 2020, the judge largely agreed with Vardy and held that the meaning of the words complained of was:

“Over a period of years Ms Vardy had regularly and frequently abused her status as a trusted follower of Ms Rooney’s personal Instagram account by secretly informing The Sun newspaper of Ms Rooney’s private posts and stories, thereby making public without Ms Rooney’s permission a great deal of information about Ms Rooney, her friends and family which she did not want made public.”

This was a set-back for Rooney, and it was seen at the time as a victory for Vardy.

The judge dismissed the argument that the average reader of the words complained of would realise that it would not just be Vardy personally who had access to Vardy’s account.

(For what it is worth, I think this was an error by the judge.)

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This decision could have been the end of the matter.

For as the judge explained:

“It is almost always helpful for the meaning of the alleged libel to be identified at an early stage. Sometimes this will lead to the end of the case, because the words are not defamatory, or because they bear a meaning which the defendant cannot defend, or for some other reason. In any event, a decision on meaning will always have a bearing on at least one of the other issues in the case.”

And the judge congratulated himself and the court:

“As this case illustrates, the process of deciding meaning is a quick and efficient one. I have heard this trial and given judgment only two months after the order for such a trial was made.”

However, it seems that the effect this decision on meaning was to make this case more complicated and time-consuming.

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The parties then amended their pleaded cases and sought to settle the case.

According to the news report above, Rooney’s third attempt to settle the case was in January 2021, after the “meaning” decision was handed down

But for some reason the case was not settled.

Sometimes cases do not settle because one party is adamant that they want their day in court, and so will refuse any settlement offer.

Sometimes the settlement offers are too low.

And sometimes, parties can get trapped by how they are funded so that they have to continue with the case as that is the least bad option.

Who knows.

But for some reason this case continued after three reported attempts to settle, and the case was now going to become far more expensive and complicated.

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Rooney’s legal team now had a challenge on their hands.

A further preliminary hearing, before a different judge (and who is the trial judge who will be handing down judgment), took place in June 2021.

Vardy (and her lawyers) sought to strike out Rooney’s amended case, especially references to Vardy’s close relationship with journalists at The Sun.

Rooney (and her lawyers) were now building an “inferential” case – that it could be inferred from other evidence that Vardy was providing private information to journalists and that would go to the sting of the allegation.

As the judge said: “an exceptionally close relationship between the claimant and the newspaper or journalists to whom the Posts are alleged to have been provided is one of the building blocks on which the defendant’s inferential case is built”. 

In other words: the determination on meaning had resulted in Rooney (and her lawyers) widening their case, so that it could be inferred from similar facts that Vardy leaked Rooney’s Instagram posts.

Vardy’s strike out application was not wholly successful.

For example, the judge said of one part of the application: “While these paragraphs do not go to the core issues, the allegation that the claimant had, or was the primary source for, a gossip column about professional footballers and their partners in The Sun is logically probative similar fact evidence.”

This court decision was, to invoke an analogy, where the match started turning against Vardy.

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And then there was the fateful preliminary hearing in February 2022.

This was the hearing where the parties made applications and counter application, and sought to get certain evidence included and excluded.

The judgment of this preliminary – not final – hearing is 56 pages, with 203 paragraphs.

This judgment is where we find that the evidence of Vardy’s agent “is that in August 2021 she lost the mobile phone that she had used during the period January 2019 to August 2021. The respondent states that this occurred while on a boat trip during a holiday, when the boat hit a wave, and she accidentally dropped her phone.”

We also become aware of the following message of Vardy:

“Would love to leak those stories x”

You can understand why Vardy would want such a message excluded from evidence, but her application to exclude it failed.

And so on.

What had happened is that Rooney (and her lawyers) had followed up their widening of their case with successfully having evidence put in about Vardy and her agent leaking stories generally.

At this stage, even if Vardy succeeded in the libel claim against Rooney, it was becoming obvious that any trial would be a PR disaster for her.

Any settlement at this stage must have been preferable to Vardy.

But still the case did not settle.

Instead it went for full trial in May this year.

And the proceedings were, as I have averred, a tonic for the gaiety of the nation:

A good time was had by (almost) all.

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Vardy can still win the case today.

Any inferential case is difficult – and proving Vardy herself leaked or directed the leaks of Rooney’s posts may be difficult.

If Rooney does not prove the following then she loses:

“Over a period of years Ms Vardy had regularly and frequently abused her status as a trusted follower of Ms Rooney’s personal Instagram account by secretly informing The Sun newspaper of Ms Rooney’s private posts and stories, thereby making public without Ms Rooney’s permission a great deal of information about Ms Rooney, her friends and family which she did not want made public.”

But.

Winning a legal case is not the same as winning in the court of public opinion.

And it may be that the costs consequences of Vardy “winning” may be horrendous if Vardy turned down a so-called “Part 36 Offer” (or similar) that offered to settle at a higher amount.

That a case like this will have four published judgments does not reflect well on our legal system.

That the legal costs will be very high – and to many obscenely astronomical – also does not reflect well on our legal system.

Libel litigation, however, can be highly technical and resource-consuming.

Instead of only the “meaning” being dealt with briskly in November 2020, there is really no good reason why the whole of the case could not have been done briskly, instead of the elaborate applications and counter-applications, strike outs and disclosures, amendments and oppositions.

And if it could not have heard briskly, it is a case that should have settled at the first available opportunity.

Libel litigation can grow like topsy, and often does.

And the point of libel litigation?

Well, supposedly the aim of libel litigation is “vindication”.

But after the PR horrors of the trial, it is difficult to see how Vardy comes out of this case well, even if she wins later today.

In seeking to vindicate her reputation, the practical effect of Vardy’s libel claim has been to undermine it.

This is a case that should never have gone to trial.

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The importance of access to good legal advice: how Johnson had only one penalty while junior Downing Street staff had many

23rd May 2022

Some of the best lawyers in the country work for those who often state publicly their disdain for lawyers.

Some of the best media lawyers work for the tabloid press who insult lawyers on front pages and blame them for many social and political ills.

And some of the best regulatory and procedural lawyers help populist politicians and pundits get out of all sorts of scrapes.

None of this is surprising – being part of the tabloid media or being a populist politician or pundit is a high-risk activity.

Such figures will regularly face civil and/or criminal liability in what they want to say or do, but thanks to their good lawyers they are kept safe.

The irony is, of course, that the stock lines-to-take of such figures include ridicule and hostility towards the lawyers who help others.

Those lawyers are ‘activists’ and invariably ‘left-wing’ – some are even ‘human rights’ lawyers.

In other words: the populists dislike lawyers that keep other sorts of people from legal harm, while taking the benefit of lawyers who keep populists safe.

From time-to-time you can see this discrepancy in practical examples.

During the phone-hacking cases, certain publishers took the benefit of outstanding legal advice, while sometimes letting individual reporters and their sources fend for themselves.

And last week we saw the same with the Downing Street parties and the now-closed Metropolitan police investigation.

It would appear that senior Downing Street figures escaped penalties while junior staff incurred them.

And it seems to be the situation that this discrepancy may be because senior figures had the the benefit of deft legal advice in how to complete (and not complete) the questionnaires, while more junior staff provided answers that had  not had the benefit of such advice.

This sort of ‘getting off on a technicality’ would – if it were about migrants or other marginalised group, or loud protesters – be met by emphatic criticism from populist politicians and the tabloid press.

But as it is the leaders of a populist government, then there is hardly a word.

There is nothing wrong with such senior figures having access to competent legal advice.

The issue is not that some have access to good lawyers, but that not everyone does.

Everybody facing criminal liability should have access to the legal advice of the standard that assisted Boris Johnson in ‘Partygate’.

And when you next see denouncements of ‘activist’ lawyers, remind yourself that those denouncements often come from those with ready access to the best quality legal advice, when those that need help from ‘activist’ lawyers often do not.

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Blue ticks on Twitter – the problems with regulation and self-regulation

31st March 2022

Some people who care about these things are upset when they don’t have a ‘blue tick’ verification mark on their Twitter account.

Some people who care even more about these things are upset when, for whatever reason, their cherished ‘blue tick’ is removed.

I happen to have a high-follower Twitter account – where I tweet about things where credibility and indeed verification can be important – but I do not have and do not want a ‘blue tick’.

(Indeed, I have refused one.)

Why?

Isn’t credibility and verification important?

Well.

There are different ways of having credibility and different methods of verification.

I tweet (and blog) about the law, but I rarely say expressly that I am legally qualified.

This is because I want the content of my commentary itself to have credibility, rather than to appeal to authority.

If I have to resort to ‘actually I am a solicitor’ then something has gone astray in my commentary.

Either I get the law right or I get the law wrong – and in neither case should having ‘lawyer’ or ‘solicitor’ in my bio make any difference, still less a ‘blue tick’ against my name.

(I have a similar problem with lawyers who insist on having ‘QC’ on their social media account, as if their tweets are court pleadings, or formal advices or opinions.)

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Indeed, in my opinion the ‘blue tick’ can confer a false sense of authority.

A view can be taken that a thing must be true or fair – just because it has been tweeted (or re-tweeted) by a ‘blue tick’ account.

Yet nasty and vile tweets can be tweeted by ‘blue tick’ accounts, as well as factually false information.

This is because a ‘blue tick’ is not actually a badge of credibility or verification, but – too often – a substitute for one.

Such an objection, however, does not mean that anything goes.

Instead, it means people should be critical with what they engage on social media.

Ask questions: who follows an account, who does an account frequently engage with, what are the replies and quote-tweets of a tweet, does the tweeter link to sources – and so on.

Forming your own view, in other words – rather than nodding-along with a false badge of authority.

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I know the easy response to this will be for some to say that I misunderstand social media – and that people do not want to think for themselves.

But – we are still in the early history of social media and internet-based global communications, and we should not mistake what social media is like now with what it may become.

We could all shout at strangers in the street or on the bus – but almost nobody does, even though the opportunity is there.

And similarly people may become more measured and sensible in how they interact on social media.

The best regulation, in my view, comes from – where possible – empowering people to make informed decisions.

And the arbitrary and non-transparent system of ‘blue ticks’ – which confer respectability on some unpleasant and/or false tweets – is the means of encouraging people to not make informed decisions, rather than making them.

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SLAPP and English courts – some preliminary issues

21st March 2022

SLAPP – strategic litigation against public participation – is a new-ish name for an age-old problem.

Here is L. Ron Hubbard in 1955 advocating law suits against those who were using Scientology materials without authorisation:

“The purpose of the suit is to harass and discourage rather than to win. The law can be used very easily to harass, and enough harassment on somebody who is simply on the thin edge anyway, well knowing that he is not authorized, will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly”

(The Scientologist: a Manual on the Dissemination of Material, page 157)

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SLAPP is, of course, a pejorative term (as this blog recently averred) – but, for want of a better term, is the best name we have got for a certain thing.

The problem with SLAPP being a pejorative term is that, just as one person’s terrorist can be another person’s freedom fighter, one person’s SLAPP case is another person’s legitimate attempt to defend their reputation and/or privacy rights.

Few if any claimants will say expressly that their case is a SLAPP case – not many are as brazen as L. Ron Hubbard.

And it is possible that what one side considers to be a SLAPP case will genuinely not be considered to be a SLAPP case by the other side.

That said, SLAPP as a term has two useful qualities.

First, it is not limited to any one area of law – for example defamation – and so it implicitly recognises that various areas of law can be (mis)used – not only defamation but also misuse of private information, data protection, confidentiality, intellectual property rights, and so on.

Second, it indicates that certain decisions are being made strategically – or at least, tactically (though TLASS is a less handy acronym) – about the purpose to which law is being used.

Another problem, however, with SLAPP as a term is that its American origins may mislead people into thinking all anti-SLAPP legislation is the same.

In fact, much of what constitutes anti-SLAPP reform in the United States is already part of English law, including the ready availability of costs sanctions and early opportunities for meritless cases to be struck out.

There is no single anti-SLAPP reform that fits all jurisdictions.

So as long as the strengths and weaknesses of SLAPP as a term are borne in mind, it is the best description we have got of a certain thing.

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But – what is that thing?

Well.

One thing it usually is not about is the law or procedural rules being broken by lawyers or their clients.

In almost all SLAPP cases, the lawyers are using the laws and court procedures available to them: the issue is the ulterior purpose to which those laws and court procedures is being put.

This is why, in my view, attempts to ‘name and shame’ the lawyers involved are misconceived.

(Though, for completeness, I know and deal with many of those who are involved.)

The lawyers that have so far been publicly named are but a sub-set of the lawyers competent and willing to take on such claims.

And – frankly – you do not need parliamentary privilege to ‘name and shame’ the lawyers: all you need to do is look at the case reports to see who they are, and at their own websites to see how they promote their practices.

I happen to be a media defence lawyer (among other things) – acting for journalists, campaigners, and politicians – and I chose not to act for claimants in these sort of cases, but that is entirely a personal choice.

In my experience of seeing dozens of threatening letters (of varying quality), almost all the threats are within the scope of law and practice as it stands.

And if a threatening letter did not come from one firm, I can imagine pretty much the same sort of letter coming from a dozen other firms.

The problem is with the law and practice, and so – if you sincerely want to solve the problem – that is where the solution will be.

Although therapeutic, ‘naming and shaming’ the lawyers involved is a cul-de-sac.

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Another thing to note is that, in England, SLAPP is not just about costs – even if the amounts involved can be eye-watering.

Yes, London claimant lawyers are expensive – too expensive.

But: American lawyers are expensive too, sometimes even more expensive than English lawyers.

Media lawyers in other jurisdictions are also high-charging and highly paid.

Yet, it is in England that certain cases are brought – and threatened.

This is because the problem with SLAPP cases in London is not just the costs, but how those costs can be easily weaponised as part of of a legal threat.

London litigation is often not a game of thrones, but a game of costs.

The dynamics of many cases will come down to costs, and how costs consequences can be inflicted and deflected.

And how this happens comes down to the structure and practice of the relevant law.

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But perhaps the biggest difficulty about discussing SLAPP in England is that the discussion can sometimes seem abstract.

SLAPP is a bad thing, and nice people are against bad things.

Let’s boo at SLAPP!

But the challenge is to make any SLAPP reform work practically – to make a difference in actual cases.

There are a number of ways law and practice can be misused, and so any reform needs to be set against actual cases to see if the reform would make any practical difference.

One thing I recall from the campaign which led to the Defamation Act 2013 is that the key case for mobilising support – the misconceived and illiberal claim brought by the British Chiropractic Association against science writer Simon Singh – turned out not to be directly relevant to the legislation that was then passed.

Little in that Act would stop another such case being brought again – and indeed it was the court’s own decision in that case, and not any legislation, that has stopped further similar claims.

There can be a practical disconnect between cases that attract public concerns and the reforms then promoted for dealing with such concerns.

That is why this blog is going to look over the next few days at a ‘data-set’ of SLAPP cases, to see what the actual problems are and to see what, if any, solutions can be put in place to stop similar cases being threatened and brought.

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In the meantime, I would suggest anyone interested in SLAPP, and what practical reforms can be implemented to prevent such cases, look at the following:-

– the transcript of the oral evidence at the foreign affairs select committee on the use of strategic lawsuits against public participation (or watch it here);

– the excellent and comprehensive work by Susan Coughtrie and the Foreign Policy Centre on SLAPPS – including this policy paper;

– this House of Commons library briefing on SLAPP; and

– the UK government’s recent call for evidence on SLAPP.

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The Chelsea FC statement that is not what it seems

27th February 2022

Last night – at 6.45pm on Saturday – Chelsea Football Club unexpectedly published this statement:

In terms of media coverage, the statement could not have been timed better.

It was early enough to be just about picked by the Sunday newspapers, but late enough to avoid lengthy scrutiny.

And it was at that time on a Saturday that those on Twitter are expecting ‘breaking’ stories.

Accordingly, the statement was quickly taken (and shared) by many in news and sports media as being significant.

This apparent significance also seemed warranted by the content of the statement, which I publish below (with sentences split out):

“Statement from Club Owner Roman Abramovich

“During my nearly 20-year ownership of Chelsea FC, I have always viewed my role as a custodian of the Club, whose job it is ensuring that we are as successful as we can be today, as well as build for the future, while also playing a positive role in our communities.

“I have always taken decisions with the Club’s best interest at heart.

“I remain committed to these values.

“That is why I am today giving trustees of Chelsea’s charitable Foundation the stewardship and care of Chelsea FC.

“I believe that currently they are in the best position to look after the interests of the Club, players, staff, and fans.”

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Let us look at what this actually says.

One phrase which stands out is “stewardship and care” – which Abramovich is “giving” to the “trustees of Chelsea’s charitable Foundation”.

Two sentences before that phrase – deftly – this is framed as a “decision”.

This looks solemn and legally meaningful.

But.

The statement has no legal meaning at all.

Indeed, it would seem that the statement was crafted deliberately so as to give the impression that something legally significant was happening – a “decision” to transfer a thing to “trustees” – when nothing legally significant was happening at all.

This is PR – and this is what you get when you can afford expensive and wily PRs.

And it had the desired effect:

And there were many excited tweets from those in news media who should have known better suggesting the statement said something important.

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The phrase “stewardship and care” looks like it should be a legal phrase.

It is similar to, say, “duty of care” (which is a legal term of art) – and “stewardship” has a nice legal-ish comforting ring to it.

But it is flapdoodle.

What one transfers to trustees is not “stewardship and care” but ownership of property.

The trustees then – literally – hold that property on trust on behalf of beneficiaries.

But if you look at the Chelsea FC statement there is no property been passed to trustees.

The word “trustees” is, in effect, a misdirection.

They may as well be assistant referees or physiotherapists, for their title is – strictly speaking – irrelevant to what is being described

It is very skilfully put-together statement for journalists and others in a hurry.

And only those with a background in commercial and trusts law would realise immediately that the statement did not actually say what it seemed to say.

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This does not mean that the fact of such a statement is not without its own significance.

There would be a purpose to such a statement at such a time: statements like this are not randomly put out at 6.45pm on a Saturday when Russia is invading Ukraine.

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Of course: there is nothing wrong about retaining ownership of Chelsea FC – even from my perspective as an Aston Villa supporter.

It is certainly not defamatory to say that Abramovich remains as much the owner of Chelsea FC after this statement as he was before.

(And we would especially like to welcome all the representatives of London’s defamation law enforcement community who have chosen to join us here on the law and policy blog at this time.)

Nothing on this blog should be taken to mean that one should think any worse of anyone involved – indeed, this post registers admiration at a such a perfectly deft exercise in PR.

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Was the ‘surveillance state’ a price worth paying?

 

30th August 2021

Over at the Foreign Affairs journal is this fascinating, well-argued article:

From a liberal perspective, there are parts of the piece that are both convincing – and disturbing.

For example, the author Thomas Hegghammer avers that not only is the west better resourced:

‘Western governments have also proved to be less scrupulous about preserving civil rights than many expected in the early years of the war on terrorism. When faced with security threats on their own soil, most Western states bent or broke their own rules and neglected to live up to their self-professed liberal ideals.’

The gist of this seems true – and what is disturbing for the liberal is that it may well have been a ‘price worth paying’.

Hegghammer amplifies this point in respect of privacy laws and the surveillance state:

‘The reason information technology empowers the state over time is that rebellion is a battle for information, and states can exploit new technology on a scale that small groups cannot. The computer allowed states to accumulate more information about their citizens, and the Internet enabled faster sharing of that information across institutions and countries. Gadgets such as the credit card terminal and the smartphone allowed authorities to peer deeper and deeper into people’s lives. I sometimes serve as an expert witness in terrorism trials and get to see what the police have collected on suspects. What I have learned is that once the surveillance state targets someone, that person no longer retains even a sliver of genuine privacy.’

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Hegghammer sets out that surveillance and the disregard for civil liberties are just one element of a general anti-terrorist strategy – alongside techniques, resources, intelligence, and the dynamics of the state-terrorist relationship.

And it is not clear whether it is an essential element.

Had Western governments and their citizens been more mindful (or to critics, precious) about their civil liberties, would it have meant that the other elements of anti-terrorism policy would not have worked so well?

And what would it have practically meant for Western governments to have been more ‘scrupulous about preserving civil rights than many expected in the early years of the war on terrorism’ rather than less?

Most liberals will accept that the state can do all sorts of things for the purpose of anti-terrorism, as long as it has a lawful basis and is subject to democratic and judicial supervision and the principle of proportionality, and it lasts no longer than necessary.

Would such requirements really have hindered the security services in their work?

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To a certain extent Hegghammer’s argument has a flavour of ‘just so’ story – there is less terrorism now than before, and so what happened between then and now must explain why there is less terrorism.

But that said: Hegghammer’s observation that the state now has access to online information and communications data that makes it difficult-to-impossible to use electronic devices, media and payments for the purposes of organised terrorism is compelling.

However: terrorism, like other forms of human cruelty, adapts.

It may well be that we have not ascertained or imagined how the next generation of terrorists will work out how to be cruel.

But in the meantime: we will still have the surveillance state – and no state voluntary surrenders its powers.

Perhaps that was – and will continue to be – the ‘price worth paying’.

The price was a high one, all the same.

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The folly of diverging from the GDPR just because we can

26th August 2021

Like a dog that caught the car, the United Kingdom government is wondering what to do with Brexit.

Today’s offering, reported in the Telegraph is overhauling or replacing or something to do with GDPR – the European Union’s detailed data protection regime.

The flavour of the suggestion is in these tweets:

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The proposal has the usual signs of superficial thinking, with the ‘ending red tape’ and ‘row with Brussels’ lines that are the substitute for any serious policy thought.

In fact, the rows will not be with Brussels – the European Union and its businesses will be at ease with the United Kingdom erecting yet another non-tariff barrier against the interests of British businesses.

The rows instead will be with those British businesses, which will now have two lots of red tape to negotiate instead of one.

This is so bleedingly obvious that it really should not need typing out.

None of this is to say that the GDPR is perfect legislation – it certainly is not.

But compliance with one technical and complicated regime is onerous enough – multiplying such regimes just because we can is folly.

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Ministers and their political and media supporters will clap and cheer at this exercise in nose-cutting in spite of a face.

The European Union, like bemused household cats, will just stare at the spectacle.

It is all rather silly, and rather depressing.

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The United Kingdom’s digital economy will not so much turbocharged but torpedoed.

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Why both the Science Museum and Shell were unwise to agree to a ‘gagging’ clause

30th July 2021

Last night Channel 4 news revealed that the science museum in London had agreed to a ‘gagging’ – or non-disparagement – clause in a sponsorship agreement with Shell.

This revelation has been a reputational disaster for both parties.

Here is Greta Thunburg:

In my view, both parties deserve this flak – as it was an unwise provision to have in such an agreement.

They only have themselves to blame.

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One difference between a good contract lawyer and a wise contract lawyer is to know the difference between a provision being available for an agreement and a provision being appropriate for such an agreement.

The agreement here was a sponsorship agreement – and in the normal course of things, and as between private commercial parties, such a non-disparagement clause would be unexceptional.

Such a clause does two things.

First, it expressly regulates what a party can and cannot do.

Second, it provides an express basis for terminating a contract (or for some other legal remedy) if the provision is breached.

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In this particular case, Shell could well have ‘taken a view’  – to use a common commercial lawyers’ phrase – on the risk of whether the science museum would disparage Shell.

And if so, whether Shell would really want to rely on such an express provision in ending the sponsorship agreement.

Yes: there was a risk of disparagement – but did it really need to be dealt with on the face of the agreement?

Really?

Or was it a risk that could be better managed by other, less legalistic means?

A far greater risk – and one which was entirely foreseeable, and indeed has to come to pass – is that the clause itself would be disclosed.

Shell was contracting with a public body in a highly sensitive political and media context.

There was a strong chance – indeed a virtual certainty – that at some point the terms of the sponsorship agreement would enter the public domain.

And when this happened, that the reputational fall-out would be far worse than any disparagement that the clause itself would ever manage.

The insertion of such a clause in such an agreement was a media catastrophe in the making.

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Some lawyers may bleat that such a clause was ‘reasonable’ – and they are right insofar that such a clause would be sensible in a normal sponsorship agreement between private parties.

But the very same provision can be absolutely lacking in reasonableness in this media and policy sensitive context.

To the extent there was any serious risk of disparagement by the science museum of Shell, then Shell should have taken the view that there were far better and less legalistic means of addressing the risk.

And the science museum should in turn have insisted that there should be no clause that would limit their ability to discuss any of the issues relevant to the sponsorship.

In essence: this was not a contractual clause that Shell should have insisted on.

And it certainly one to which the science museum should not have agreed.

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