Monday 26 March 2012

A costly tweet

Mr. Justice Bean decided at the High Court in London earlier today to award the New Zealand cricketer, Chris Cairns, £90,000 damages in respect of comments contained in a Tweet sent in 2010 by Lalit Modi. The Tweet was 24 words long (and two of those were "the"). Experts disagreed whether 35 or 95 people had read it before a compromise agreement was reached at 65. Neither the number of words used nor the number of people who read them are determinative of what damages should be awarded. What matters is the harm caused by the accusation and the accusation here was a serious one. Still, the decision is a salutory reminder that you don't need to work hard or spend a lot of time to lose a lot of money in a libel case in the English courts. The plaintiff's lawyers are said to estimate that the costs due by Mr. Modi will come in at £1.5m.

We all know that actionable defamatory statements can be made online and via Twitter as easily as they can verbally or in writing. There's a tendency among lawyers sometimes to get all excited about something just because it involves (relatively) new technology. The recent fuss about service of court documents via Facebook was a case in point. However, it was interesting to see that the judge considered that parts of the defendant's barrister's closing speech in themselves amounted to an aggravating factor when it came to assessing damages:

"The flavour of the way the defence was run at trial is most vividly conveyed by the closing speech on behalf of the Defendant. As Mr Caldecott submitted, Mr Thwaites could hardly have pitched it higher. The words "liar", "lie" and "lies" were used in all 24 times. One passage, as Mr Caldecott rightly says, stands out as particularly offensive to the Claimant:-

"In our submission it was nothing short of a diabolical scheme that involved blackmailing young players of ability and integrity into match fixing when that was the last thing they wanted to do. … So they were prisoners. They were being abused. There was a breach of trust by the captain and the vice-captain. They were like children in an orphans' home who, abused by everyone around them, can trust no one, can report to no one."

This attack, with the benefit of absolute privilege, must be taken to have been made on the instructions of Mr Modi. I take the view that the sustained and aggressive assertion of the plea of justification at the trial increases the damages recoverable by a factor of about 20%."

Also, frankly, the version of Twitter's logged-out homepage that we got as the graphic for this post was so apposite that it would have been criminal not to comment.

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