Wednesday, 29 May 2013

How does asking why something is happening amount to a libellous statement?

Sally Bercow tweeted:
"Why is Lord McAlpine trending. *innocent face*."

What about "Why is Lord McAlpine trending. *sad face*"?

What about "Why is Lord McAlpine trending. *happy face*"?

What about "Why is Lord McAlpine trending. *wink*"?

Even if she were asking the question maliciously, she would not be asserting that Lord McAlpine was a sex offender. She could just have been glad that an innocent man had been accused.

Justice Turgendhat:

"The allegation was made by a complainant, a Mr Messham, who was *undoubtedly* abused when he was a boy living at the Bryn Estyn care home in Wales in the 1970s and 1980s."How would Justice Turgendhat know?

 Was there a trial?

Has anyone been convicted?


Justice Turgendhat's cavalier and unlawyerly use of words in his judgement at does suggest that his judgment may not be as sound as it ought to be.   

In any case, it should be quite easy to explain even to a schoolchild learning the rudiments of grammar that a question can never ever be statement, because a question enquires (whatever the intention and malice of the person asking, whether or not the question is rhetorical or leading), while a statement asserts.

A statement asserts the truth of what it asserts, and a question, however, maliciously asked, always gives the answerer the option of contradicting whatever it was that was being suggested.

Why didn't her lawyer argue that??

I don't even like the woman, but this verdict really really bothers me.  If I had a spare hundred thousand or three I would bankroll her appeal.

I am not saying that no question could ever be defamatory.  If Sally Bercow had tweeted

"Why is Lord Acton a sex offender?"

she would be making a statement that he is one.

"Why is God angry with me?"

would be a statement assuming and stating the existence of God.

One that lawyers would be familiar with is:

"When did you stop beating your wife?"

This assumes that the accused has been beating his wife.

"Why did you kill your wife?"

This question assumes that the accused killed his wife.

Supposing Sally Bercow had tweeted:

"Lord McAlpine is trending on Twitter because has been named on Newsnight.  *grinning with malice*"

There is no way it can be said this statement indicates that the maker of this statement assumes his guilt.  At its highest, it only displays malicious pleasure that he has been named.   To be accused or arrested does not mean one is automatically guilty.

In the name of liberty, investigative journalism and press freedom, Sally Bercow should have appealed against this perverse and irrational decision. has a rather alarming story in which people who are becoming increasingly emotional and intolerant complaining in large numbers about the questions they found offensive posed by YouGov, which does excellent work.

If Justice Tugendhat's irrational judgment is allowed to stand, our descent into chaos and fear in a climate of censorship will accelerate.

It was obviously a bad move for her not to insist on a jury. If most of the jurors were users of social media she would have got off easily.

Does a defamation case have a judge and a jury?

Usually a defamation case will be tried by a jury. The exceptions are when both sides agree for the case to be heard by a judge without a jury or when the judge decides that a jury will complicate matters. This could be, for instance, because explaining the complexities of certain defamation cases to a jury of laypeople could be too time consuming.

Firstly in a libel case with a jury, the judge will rule whether or not the statement in question is capable of bearing a defamatory meaning. If the judge rules that it is, only then will a jury be called upon to decide whether or not the statement was defamatory. The jury takes into account the circumstances in which the statement was made e.g. the jury examines an explanation of the meaning of the exact words in the context in which they were originally used.

Finally, if the jury finds that the statement was defamatory they will then decide how much the publisher will pay in damages to the individual, company or organisation about whom the statement was made.

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