- Following several settlements, proceedings were dropped against those with fewer than 500 followers, requesting that they make a modest donation to the charity Children in Need. This left intact a lawsuit against Sally Bercow, wife of the House of Commons speaker and a Labour Party activist, who has 56,000 followers: see T Peck, 'Lord McAlpine: I Forgive Everyone—Except Sally Bercow', The Independent (21 February 2013). And in McAlpine v Bercow [2013] EWHC 1342 Bercow's tweet was found to be defamatory (the parties subsequently agreed damages).
- L Smith, '”It Rots Your Life”—Lord McAlpine Speaks Out over “Terrifying” Experience of being Falsely Accused of Paedophilia', The Independent (16 November 2012).
- See Axel Springer AG v Germany [2012] ECtHR 227, [83]: '[T]the right to the protection of reputation is a right which is protected by article 8 of the Convention as part of the right to respect for private life … [if] the attack on personal reputation [attains] a certain level of seriousness and [occurs] in a manner causing prejudice to personal enjoyment of the right to respect for private life.'
- Although others have taken it up: see, for instance, 'The BBC, Lord McAlpine and Libel Law', Inforrm's Blog (12 November 2012), http://inforrm.wordpress.com/2012/11/11/the-bbc-lord-mcalpine-and-libel-law; G Phillipson, 'Lord McAlpine and Libel Reform: What the Newsnight Debacle Can Tell Us about Proposed Changes to Defamation Law', guardian.co.uk (14 November 2012), www.guardian.co.uk/law/2012/nov/14/lord-mcalpine-defamation-bill-newsnight-libel-reform.
- P Bernalz, 'A Defence of Responsible Tweeting?', The Justice Gap (18 January 2013), http://thejusticegap.com/News/a-defence-of-responsible-tweeting.
- Comment to D Rickman, 'Lord McAlpine “Set to Sue” Sally Bercow, ITV's This Morning and “Long List” of Twitter Users', Huffngton Post UK (15 November 2012), www.huffngtonpost.co.uk/2012/11/15/sally-bercow-lord-mcalpine_n_2137369.html.
- J Zittrain, ‘A Twitter Law would be Unwise’, Financial Times (23 November 2012), www.ft.com/intl/cms/s/0/f7aff27a-33f1–11e2–9ce7–00144feabdc0.html#axzz2IIikKagH.
- J Habermas, 'The Public Sphere: An Encyclopedia Article' (1964), trans S Lennox and F Lennox, (1974) 3 New German Critique 49, 49; and generally The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (1962), trans T Burger assisted by F Lawrence (Polity Press, 1989).
- W Dutton, 'The Fifth Estate Emerging through a Network of Networks' (2009) 27 Prometheus 1, 10.
- For Twitter's predominant culture as one of mapping trends and expressing affliation, see D Boyd, S Golder and G Lotan, 'Tweet, Tweet, Retweet: Conversational Aspects of Retweeting on Twitter' (HICSS-43), Kauai, HI: IEEE, 6 January 2010, http://origin-www.computer.org/csdl/proceedings/hicss/2010/3869/00/03-06-04.pdf. M Zappavigna, Discourse of Twitter and Social Media: How We Use Language to Create Affliation on the Web (Continuum International, 2012).
- For instance, J Curran, N Fenton and D Freedman, Misunderstanding the Internet (Routledge, 2012) 184 (law can play a useful role in refashioning the internet as a genuine public sphere); C Sunstein, On Rumours (Allen Lane, 2009) 78 (unclear that US defamation law's limited regulation of free speech 'is one that we would or should choose for the Internet era'); D Citron, ‘Civil Rights in our Information Age’ in S Levmore and MC Nussbaum (eds), The Offensive Internet (Harvard University Press, 2010) 31 (a comprehensive legal approach required to cyber-mobs which work to exclude minority voices).
- As JS Mill put it in On Liberty (1859), reprinted in M Warnock (ed), Utilitarianism, On Liberty, Essay on Bentham (Collins, 1962) 126, 175.
- Especially by the utilitarians: see eg W Paley, ‘The Law of Honour’ in The Principles of Moral and Political Philosophy printed for J Faulder, 1785, bk 1, ch 2 (rules of honour not sure to lead to future and fnal happiness); J Bentham, Theory of Legislation (originally Principles de législation and Traités de législation civile et pénale (1802)), trans from the French of E Dumont by R Hildreth (Trüber & Co, 1864), ‘Principles of the Penal Code’, part 2, ch xv, 307 ('as soon as the law shall offer a certain remedy against offences that wound the honour, no one will be tempted to recur to an equivocal and dangerous means').
- An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, During the Times Therein Mentioned, 1710, 8 Anne, c19.
- (1741) 2 Atk 342. Curll's name was misspelt in the report of the case.
- The practice and Curll's scurrilous involvement are discussed extensively in D Stauffer, The Art of Biography in Eighteenth Century England (Princeton University Press, 1941).
- (1741) 2 Atk 342, 342–3.
- Ibid, 343.
- See M Rose, Authors and Owners: The Invention of Copyright (Harvard University Press, 1993) 60–62.
- As Pope wrote to Ralph Allen after the case, 'That rascal Curll has pyrated the Letters, which would have ruin'd half my Edition, but we have got an injunction from my Lord Chancellor to prohibit his selling them for the future, tho doubtless he'l do it clandestinely': G Sherburn (ed), The Correspondence of Alexander Pope (Clarendon Press, 1956) vol 4, 350.
- W Hazlitt, Lectures on English Poets delivered at the Surry Institution in 1818, reprinted in Lectures on the English Poets & The Spirit of the Age (JM Dent & Sons, 1910) Lecture IV, 68, 79.
- Ibid.
- An example is Southey v Sherwood (1817) 2 Mer 435, where the Poet Laureate, Robert Southey, a conservative fgure given to expressing his political opinions in the Quarterly Review, sought unsuccessfully to restrain the defendant's publication of his youthful radical work Wat Tyler after his enemies had obtained the manuscript and made clear their intention to exploit it with a view to exposing him for his alleged hypocrisy. Southey's application for an injunction citing the property right in unpublished works was rejected on the basis that he had likely abandoned the manuscript, having earlier left it with a publisher and never reclaimed it. But there were hints that the manuscript's seditious tendency may have been the real reason why Lord Eldon LC was reluctant to lend support to the application: see M Richardson and J Thomas, Fashioning Intellectual Property: Exhibition, Advertising and the Press (Cambridge University Press, 2012) 21–30.
- Entick v Carrington (1765) 2 Wils KB 275.
- According to A Cash, John Wilkes: The Scandalous Father of Civil Liberty (Yale University Press, 2006) 88.
- For instance, says Cash, 'within the space of six years [from Wilkes's most scandalous essay criticising the King and his ministers and calling for “the spirit of liberty”, published in the North Briton, No 45, in 1863] there were at least forty cases emanating from the general warrant issued against Wilkes and various printers': Ibid, 133.
- Entick v Carrington (1765) 2 Wils KB 275, 292 per Lord Camden.
- T Starkie, The Law of Slander, Libel, Scandalum Magnatum and False Rumours (W Clarke and Sons, 1813) 609.
- The common law right was subsumed under the statute with the Copyright Act 1911, s 31.
- Prince Albert v Strange (1849) 1 H & Tw 1. Although interestingly it was not seen in this way for much of the 19th century; as L Bently points out, a case's canonical status can vary considerably with time: 'Prince Albert v Strange (1849)' in C Mitchell and P Mitchell (eds), Landmark Cases in Equity (Hart Publishing, 2012) ch 8.
- Prince Albert v Strange (n 30) 2, noting that Jasper Judge (the intermediary) was subsequently added as a further defendant.
- Ibid, 22.
- Ibid, 23.
- (1825) 1 H & Tw 28.
- Prince Albert v Strange (n 30) 26. See also Knight-Bruce VC's judgment at frst instance: (1849) 2 De G & Sm 652, where numerous references are made to privacy.
- S Warren and L Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193.
- Ibid, 205.
- See discussion of the case in M Richardson, M Bryan, M Vranken and K Barnett, Breach of Confdence: Social Origins and Modern Developments (Edward Elgar, 2012) 21–23.
- According to Queen Victoria's (unauthorised) biographer, Clare Jerrold, Judge took a particular interest in providing critical public commentary on royal affairs, and the etchings affair was one of several incidents: The Married Life of Queen Victoria (G Bell & Sons, 1913) ch 10.
- (1849) 2 De G & Sm 652 per Knight-Bruce VC at 694 and 697.
- Ibid, 676–77.
- As noted in ‘A Royal Suit in Chancery’, The Times, 30 October 1848, 6: 'Her Majesty and the Prince are well known as patrons of the arts.' Asa Briggs has argued that the royal couple's interests here was not limited to artistic patronage; their more general concerns (particularly evident with the Great Exhibition on which Prince Albert ‘worked unceasingly’) were promoting ‘economic prosperity’ and avoiding ‘political fragmentation’: A Briggs, Victorian People (Odhams Press, 1954) 24–25.
- (1849) 2 De G & Sm 652, 667.
- (1741) 2 Atk 342, 342–3.
- (1825) 1 H & Tw 28, 32. The argument is made more explicitly in The Lancet 's commentaries on the case: see eg ‘Mr Abernethy and his Chancery Application’, The Lancet, 22 January 1825, 89 (‘freedom of the medical press’).
- Arguably, Southey v Sherwood (n 23) can be classifed as an example of suspected plaintiff wrongdoing being used to justify the defendant's public exposure; or at least this is an argument that Lord Eldon LC (a judge who Hazlitt said was always subservient to authority) seemed to consider as a possible reason to deny the claim.
- (1857) 26 LJ Ch 113.
- (1839) 8 LJ Eq (NS) 141.
- For earlier authorities to similar effect (although the language was less elaborate) see Wilkins v Aikin (1810) 17 Ves 422, 425 per Lord Eldon LC; Whittingham v Wooler (1817) 2 Swanst 428, 431 per Sir William Grant MR.
- (1839) 8 LJ Eq (NS) 141, 142—Lord Cottenham LC noting that even in the respectable journals, such as the Edinburgh and Quarterly Reviews, 'large extracts … from works are constantly given … [for the purpose of] explaining their criticisms of the works'. The social value of such commentary is taken for granted.
- (1808) 1 Camp 348.
- (1808) 1 Camp 357.
- (1840) 6 M & W 105, 108. Alderson B concurred at 109, stating: 'criticism may reasonably be applied to a public man in a public capacity, which might not be applied to a private individual'.
- P Mitchell, The Making of the Modern Law of Defamation (Hart Publishing, 2005) 172.
- Their comments were aimed particularly at the political public sphere: see Paley (n 13) 548 (the law of libel and its punishments should not target popular discontents); J Bentham, On the Liberty of the Press and Public Discussion (William Hone, 1821) 12 (in the case of a ‘public functionary’ there should be no punishment for defamation unless the imputation be ‘false and groundless’, and the result of 'willful mendacity, accompanied with the consciousness of its falsity, or else with culpable rashness' in order that ‘the liberty of the press’ can operate 'as a check upon the conduct of the ruling few').
- JS Mill, 'Law of Libel and Liberty of the Press' (1825) 3 Westminster Review 285.
- Mill (n 12).
- See ‘Bentham's Petitions for Justice’ (1829) 12 Westminster Review 430, 446 (noting that even in terms of the law's protection of free speech, it is ‘just possible’ that 'to a man in power, it should be agreeable to leave unpunished any individual audacious enough to say anything otherwise than agreeable to a man in power … witness … Lord Chief Justice Ellenborough', although adding that a code would be a more reliable guardian).
- See n 13.
- (1839) 8 LJ Eq (NS) 141, 142 per Lord Cottenham LC. And see, similarly, Whittingham v Wooler (1817) 2 Swanst 428, 431 per Sir William Grant MR (noting the defendant's argument that the publication was 'in the nature of a magazine or review, consisting of criticisms, and extracts to serve as a foundation for the criticisms' and adding that the defendant must not transgress 'certain allowed limits which are not easily defned').
- (1857) 26 LJ Ch 113, 114 per Wood VC.
- Starkie (n 28) 262—going on to discuss Carr v Hood and Tabart v Tipper in this vein at 268–73.
- It was treated, for instance, in Tabart v Tipper (n 51) as excluding a reviewer's comment which falsely and without foundation alleged that the plaintiff had published a poem deemed ‘immoral’ and in Parmiter v Coupland (n 53) as excluding unsustained allegations of corruption by a public offcial.
- See Mitchell (n 54) 177–86 for a full discussion.
- F Pollock, The Law of Torts: A Treatise on the Principles of Obligations Arising from Civil Wrongs in the Common Law (Stevens & Sons, 1887) 205.
- See AT Kenyon, 'What Conversation? Free Speech and Defamation Law' (2010) 73 Modern Law Review 697, 718–19 (adding that '[f]ree speech is not just conversation, although dialogic conversation is typically implicit in rationales for speech').
- Mill, On Liberty (n 12) 175 (until opinion reaches the state of accepted truth it must be opposed by alternative opinions, the reconciliation made by 'the rough process of a struggle between combatants fghting under hostile banners'). In his earlier article, Mill rejected the ‘doctrine’ that 'calm and fair discussion should be permitted, but … ridicule and invective ought to be chastised': Mill, 'Law of Libel and Liberty of the Press' (n 56) 300–1.
- Mill, ‘Law of Libel and Liberty of the Press' (n 56) 286 and ‘On Liberty’ (n 12) 141–2 ('although the law of England, on the subject of the press, is as servile to this day as it was in the time of the Tudors, there is little danger of it being actually put in force against political discussion except during some temporary panic').
- JG Lockkart, ‘Two Duels’ [1958] Blackwoods Magazine 385, giving accounts of duels in the 1820s–30s.
- ‘Happy Birthday’, The New Yorker (18 March 2013), 21, 22.
- At least in the current state of English law: and see Inforrm's blog (n 4), concluding that 'Lord McAlpine is likely to have tens if not hundreds or thousands of potential claims for libel'. Quaere whether the position will be different under the terms of the Defamation Act 2013 (c 26), including its publication in the public interest defence. The issue was fagged and debated on Inforrm's blog (n 4). But perhaps greater clarity is now provided by the Minister of Justice's Pepper v Hart statement on the Bill that the publication in the public interest defence ‘accurately captures the essence’ of the current responsible journalism test in Flood v Times Newspapers Ltd [2012] UKSC 11: HC Deb, 16 April 2013, col 271—and see also the Explanatory Notes to the Act, para 29.
Journal of Media Law
Volume 5, 2013 - Issue 1