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Lord McAlpine settles libel claim with the BBC.

November 17, 2012

Lord McAlpine has settled his libel claim with the BBC. He has agreed damages with them of £185,000. The Newsnight programme featured a report as to sexual abuse at a children’s home in North Wales. The report featured a Steve Messham.  It was claimed in the programme that he had been abused by a “Leading Tory Politician of the Thatcher era”.

Clearly the programme was defamatory.  However on what basis was he libelled by the BBC when he wasn’t identified in the programme?

Jigsaw identification

There have been previous cases of what is called “Jigsaw identification”.

An example was the News of the World story in 2006 which was headlined “Gay as you Go”.  It alleged that two Premiership footballers, one who had been capped several times for England and a music industry figure were caught on camera involved in a “homosexual orgy”.

A week later the newspaper published a photo of the two men obscured.

Internet bloggers managed to track down what they thought was the original photo, which showed the footballer Ashley Cole with a dance music DJ.

Cole sued the News of the Word and won the case. It is believed he was awarded £100,000 damages. Cole’s solicitors were able to refer to many people and sites where he had been identified as one of the men, which he denied.

In this case, prior to the programme being broadcast it was widely reported that the allegations had been made, and the politician Lord McAlpine was identified on Twitter.

It wasn’t however mentioned in the mainstream newspapers.

The speculation was so rife that in fact it was possible with a minimum amount of research to identify who the senior Tory politician was alleged to have been.  On 8 November 2012, the Guardian identified Lord McAlpine, but said it was a case of mistaken identity.

So he was readily identifiable despite not being named in the programme.

Defences

What other defences could the BBC have run?

Justification

The programme couldn’t defend the case on justification i.e. that what they said was true.

Reynolds defence

Could they not have relied on the defence of responsible journalism called the Reynolds defence?

This can be raised where it is clear that the  journalist had a duty to publish an allegation even if it turns out to be wrong. The court will look at the conduct of the journalist and the content of the publication.

The court would look as to whether or not the matter was in the public interest. Clearly in this case it was.

They would look at the source of the information. Whether the witness was reliable. We are unaware of what the reliability of the witness was.

The steps they had taken to verify the information.  In this case it appears that the witness wasn’t shown a picture of Lord McAlpine.

Whether the article contained the gist of the claimants side of the story. Clearly it did not. Nobody appears to have asked Lord McAlpine for his comment on the matter.  The allegations were never put to him.

So if those checks had been followed there would have been a defence.  Although presumably if those checks had been followed the story would never had been run.

Damages

So why has the BBC agreed to pay such high damages. They have agreed to pay £185,0000.

The maximum ceiling figure for a libel case is currently £275,000. This is for the most serious case with aggravating features.This case must have been at the top end of the scale.

However the BBC did publish an apology at a very early stage and did not seek to defend the case. They would be given credit for that probably as much as 50%.

Would any reduction be made because it was not the BBC who identified him and that very few people who watched the programme would have known who it was.

There could be a reduction for that but more likely the irresponsible nature of the broadcast would mean that there wouldn’t.

Therefore it is likely that the damages should have been at around £137,000.

Lord McAlpine has now turned his attention to the Tweeters.

Various Tweeters, including the Speakers wife, Sally Bercow and Alan Davies face claims.

She tweeted:

“Why is Lord McAlpine trending? *Innocent face*” Which referred to the fact that his name was being repeatedly mentioned on Twitter.

Others who directly named Lord McAlpine will be in difficulty, as would tweeters who simply stated that Lord McAlpine was involved in child abuse.

Consideration should be given to those facing a claim as to section 12 of the Defamation Act 1952

“In any action for libel or slander the defendant may give evidence in mitigation of damages that the plaintiff has recovered damages, or has brought actions for damages, for libel or slander in respect of the publication of words to the same effect as the words on which the action is founded, or has received or agreed to receive compensation in respect of any such publication.”

Tweeters can argue therefore that he has received his award at the high end of the scale and may well be the maximum he could recover and as a consequence the amount they must pay should be modest.

For advice as to Libel claims call Carruthers Law or fill in one of our enquiry forms.