Christmas is just around the corner. With all the hustle and bustle of the academic life, we all need a little time off to refresh, recover and reflect. So as of next week (Monday 21 Dec. 2020), we’ll be on a short hiatus.
We hope that you can look back on a generally positive year with us. In 2020, we had 89 posts (up from 29 in 2019) on a very wide variety of topics by authors from all areas of law. Also, we have more than doubled our views (moving from 3,326 in 2019 to 7,440 in 2020). More than half of these are from the UK, with the USA, Canada, Germany, France and China making up the rest of the top five.
The Essex Law Research blog will be back in early January with more research news from our School. However you celebrate at this time of the year, we hope you enjoy a wonderful holiday season!
Exploitation has been given a prominent place in the definition of ‘human trafficking’ found in the 2000 United Nations Palermo Protocol. It is identified as the specific aim of the crime of trafficking: all human trafficking is for the purpose of exploitation. But while the protocol lists some examples of exploitation, including slavery, servitude, or forced labour, it does not define the term itself. Nor do the numerous other international instruments that reference the term. And so, as Susan Marks has rightly wondered, we must ask ourselves: “When activists invoke international law to challenge exploitation, when lawyers advise on rights and duties regarding exploitation under international law, and when academics discuss the theme of exploitation in international legal writing, what is it that they have in mind?”
I recently proposed a tripartite definition of exploitation, which I argue underpins practices commonly referred to as ‘modern slavery’. While ‘modern slavery’ is not a legal category per se, I use it as an umbrella term for the practices of human trafficking, slavery, servitude, and forced or compulsory labour. These are jointly prohibited in many human rights instruments, either expressly, as in the EU Charter of Fundamental Rights or the Arab Charter on Human Rights, or implicitly, as in the case of the European Convention on Human Rights. Exploitation is a distinct harm that binds together practices captured by the human rights prohibition against ‘modern slavery’, which includes both actual manifestations of exploitation in the form of slavery, servitude, and forced or compulsory labour, and intended exploitation as part of human trafficking. The latter, if uninterrupted, always results in actual exploitation.
The three elements of my proposed definition are: “(a) abuse of vulnerability of an exploitee; (b) excessive (disproportionate) gain acquired through the actions of an exploitee; (c) sustained action (the practice takes place over a period of time)”. We will cover each element in turn below. Before we do that, however, I must first note that my proposed definition of exploitation applies only to practices of ‘modern slavery’ and represents the severity threshold for triggering important state obligations to protect victims under human rights law. Accordingly, while we may consider exploitation as a continuum, it is important to distinguish practices that trigger state obligations required by international human rights law from lesser forms of exploitation that warrant different types of action, or no action at all.
In other words, the proposed definition of exploitation sets “a threshold of seriousness, which operates to prevent the inclusion of less serious forms of exploitation into the concept of trafficking in persons, such as labour law infractions that may be anyway subject to another legal regime”. As such, the definition represents an important tool for both courts and individual victims in determining whether a state owes and has complied with its obligations arising out of human rights law. The absence of clear parameters for determining what counts as exploitation allows states to misclassify victims as ‘predatory economic migrants’, who willingly deploy the services of smugglers to bring them across international borders, or as ‘criminals’, who engage in unlawful activities such as cannabis cultivation or shoplifting.
The three pillars of exploitation that underpins ‘modern slavery’
Exploitation as a distinct harm that underpins all practices of ‘modern slavery’ rests on three cumulative conditions. These are discernible from philosophical debates and the jurisprudence of international and domestic courts, but they have never been expressly spelled out. These are: a) the abuse of vulnerability of an exploitee; b) excessive (disproportionate) gain acquired through the actions of an exploitee; and c) sustained action over a period of time. These three cumulative conditions provide a universal frame of reference for the notion of exploitation in relation to ‘modern slavery’, while allowing for a certain leeway to account for specific conditions in different countries. We will consider each in turn.
The vulnerability may be of any kind, whether physical, psychological, emotional, family-related, social or economic. The situation might, for example, involve insecurity or illegality of the victim’s administrative status, economic dependence or fragile health. In short, the situation can be any state of hardship in which a human being is impelled to accept being exploited.
Explanatory Report to the CoE Convention on Action against Trafficking in Human Beings (Warsaw, 16 May 2005)
Importantly, it is the abuse of vulnerability, not vulnerability per se, that is a necessary condition for the notion of exploitation. It is considered that “one’s vulnerability is exploited if the other person uses this weakness to obtain agreement to, or at least acquiescence in, a course of action that one would not have accepted had there not been this asymmetry in power”.
Establishing that a person had no realistic alternative due to the abuse of vulnerability might seem a weighty task, but it is not unlike other matters domestic courts engage with on a daily basis when it comes to assessing factual circumstances. For example, the UK Court of Appeal addressed this question in a case concerning an Iraqi Kurdish woman. She appears to have voluntarily approached the smuggler to bring her to the UK but was allegedly coerced into having sex with him along the way. The court found that “while she may have been vulnerable, she had a real and acceptable alternative available to her (…) in the shape of making an asylum and human rights claim to the French authorities.” The extent to which domestic courts are sympathetic to the plight of victims and are willing to interpret this condition broadly is debatable, but this is something which can be evaluated.
Excessive Gain. The second element of my approach to exploitation is concerned with excessive gains. While an exploited person may sometimes ‘benefit’ from being exploited, whatever benefits might accrue will fall significantly short in terms of “what [they] might or ought to be” when judged from the standpoint of fairness, as the philosopher Robert Mayer put it. However, the nature of fairness is not necessarily straightforward. An entry in the Encyclopedia of Ethics notes, there may be “as many competing conceptions of exploitation as theories of what persons owe to each other by way of fair treatment”. Nonetheless, the philosopher Mikhail Valdman is likely right when he concludes that extracted benefits become unfair and excessive when “they deviate from the benefits we would expect A to receive were he transacting with someone who was rational, informed, and could reasonably refuse his offer”.
Thus, in addition to the abuse of vulnerability, exploitation is characterised by excess: a disproportionate gain at the expense of an exploited person. In all situations of exploitation an exploited person gives significantly more than she receives in return. Take, for example, a case before the European Court of Human Rights which considered allegations of servitude and forced or compulsory labour by two orphaned Burundi sisters, aged sixteen and ten. The court ruled that “the type and amount of work involved (…) help distinguish between ‘forced labour’ and a helping hand which can reasonably be expected of other family members or people sharing accommodation”.
Distinguishing between the situations of the two sisters, the court found that the older one was forced to work “so hard that without her aid Mr and Mrs M. would have had to employ and pay a professional housemaid”. The second sister, by contrast, was said not to have contributed “in any excessive measure to the upkeep of Mr and Mrs M.’s household”. It is clear that all circumstances of the case need to be taken into account when assessing whether actions required from an individual were disproportionate to the benefits she received in return. Like the assessment of ‘no realistic alternative’ for the element of abuse of vulnerability, this is a factual question which courts can determine.
Sustained Action. We have so far established two necessary conditions for an exploitation: first, that one extracts excessive benefits, and second, that these benefits are extracted from someone who is unable to reasonably refuse an offer or demand. The final element of my approach to exploitation is the idea of repetitiveness. Exploitation takes place (or is intended to) over a period of time. One-off situations may qualify as fraud or abuse, but exploitation in the context of ‘modern slavery’ involves sustained activity. This “indeterminate temporal nature” is said to be “one of the defining characteristics of the crime of slavery”. Similarly, inherent in the notion of servitude is a victim’s feeling that her condition is permanent and that the situation is unlikely to change. When it comes to the concept of forced labour, it is obvious that ‘labour’ implies work that stretches over a period of time – not a one-off transaction.
When these three elements are put together, we have a working legal definition of exploitation within the context of ‘modern slavery’: to exploit is to acquire disproportionate gains from the actions of an individual by abusing her position of vulnerability over a sustained period of time. All three cumulative conditions (abuse of vulnerability, excessive gain, and sustained action) are factual, which leaves room for domestic courts to use national parameters when interpreting potentially exploitative practices while preserving the universality of the definition itself.
In a seminal case by the Dutch Supreme Court concerning the exploitation of Chinese restaurant workers with irregular migration status in the Netherlands, the court held that “the wretchedness of the working conditions required to conclude that exploitation is an issue” was to be determined by using “the Dutch situation as the benchmark”.
This approach means that exploitation must be regarded as a relative concept. What one country understands as exploitation may not amount to exploitation in another country, with differences being especially pronounced along the North-South divide. Yet, such flexibility is both inevitable and appropriate. This is because divergent standards between states is far less problematic than unequal protection of individuals within one state, where characteristics such as one’s immigration status or type of employment are decisive in determining the extent of protection against exploitation one may enjoy. Virginia Mantouvalou shows how the immigration system and schemes leading to precarious employment conditions are conducive of exploitation of certain categories of individuals within the UK. Thus, while labour conditions are expected to differ between states, practice reveals that even within one country certain categories of individuals experience unequal treatment and lesser protection of their rights than other categories, regardless of whether a country in question belongs to the Global North or South.
Even though the proposed definition allows for some divergence between states when determining which practices count as exploitative, it mandates each state to provide equal treatment to all persons within their jurisdiction once the three conditions are met, irrespective of their immigration or employment status. As such, it represents a powerful tool in hands of individuals subject to exploitation and a useful benchmark for courts when asked to determine which practices engage important human rights obligations of states.
This post first appeared on the website of openDemocracy and is reproduced here with permission and thanks.
The role of the Victims’ Commissioner for England and Wales – set up in 2004 to promote the interests of the victims of crime – needs to be strengthened if it is to be effective, argues a report co-written by the Essex Law School’s Professor Maurice Sunkin together with Professor Pam Cox and Dr Ruth Lamont.
The report identifies significant gaps in the current powers of the Victims’ Commissioner compared to others such as the Children’s Commissioner for England and the Equality and Human Rights Commission. Dame Vera Baird says it is her intention to make the Victims’ Code work properly for all victims, but she is currently unable to properly scrutinise victims’ rights and entitlements or to effectively hold criminal justice agencies to account.
The report states that “Currently the commissioner has no legal power to ensure that [victims’] rights are protected and that duties are performed. Since no other body has this power, this leaves an important enforcement gap.”
“This gap creates ambiguity and uncertainty. If victims’ rights are important, why is it that they cannot be enforced? If agencies have duties, why is it that they cannot be compelled to perform these duties? If rights cannot be enforced, how can victims be confident that their rights really do matter?”
The report proposes new powers which would compel criminal justice agencies to co-operate with the Victims’ Commissioner and take action where needed. The commissioner would also have a “last resort” power to bring legal action on behalf of a group of victims or to test the law “in the public interest” – if the courts found in favour of the commissioner, victims could be entitled to compensation.
There is growing consensus across the political spectrum that victims’ rights need to be enshrined in law and the Government has pledged to introduce a ‘Victims’ Law’ which will enshrine these rights. The report argues that such rights need to be enforceable and monitored.
Dr. Onyeka Osuji (Reader in Law, University of Essex) and Dr. Mohammed Khair Alshaleel (Lecturer in Law, University of Essex) were successful in securing funding from Qatar National Research Foundation for an International Conference on Digitalising International Trade Finance Process: Interrelationships, Constraints, Opportunities and Perspectives.
The conference is a collaborative event of the School of Law at the University of Essex School of Law and the College of Law Hamad Bin Khalifa University Qatar (HBKU). Dr. Alexander Ezenagu and Dr. Georgios Dimitropoulos (both attached to HBKU) are also principal investigators in the research team.
One of the objectives of this international conference is to investigate relevant difficulties, including national, regional and international perspectives and whether they are limited to specific sectors (or widespread) and the role of digitalisation of trade finance in their resolution.
The second objective is to explore the linkages between digitalisation and trade finance and provide insights for improving the legal and institutional framework.
The two-day international conference will be held at Hamad Bin Khalifa University Qatar in October 2021.
Serial health risks are increasing in occurrence and have the capacity to affect large numbers of people living in different countries. Thalidomide, contaminated blood, Diethylstilboestrol (DES), asbestos and Bovine Spongiform Encephalitis (BSE) are among some of the most well-known examples of serial health risks damaging human lives, but the recent Covid-19 outbreak reminds us that such risks have always existed, primarily in the form of epidemics. Yet, the legal treatment, in civil liability, of personal injury resulting from serial health risks often lacks clarity not only because serial health risks have diverse origins, but also because they can trigger different regimes of civil liability. Given their increasing importance and this lack of clarity, I devoted my PhD thesis to the comparison of how the French and English legal systems responded to serial health risks in civil liability. I concluded that while these two legal systems are facing similar legal challenges from a civil liability perspective, they have not always responded in a similar manner. In fact, I argued that their differences of approach highlight unreconcilable views as to the conception of civil liability, its role and its underlying objective. My analysis also led me to conclude that despite these differences, the legal treatment of victims of serial health risks remained unsatisfactory in both legal systems due to unjustifiable inequality of treatment. The following post will provide a summary of the key-findings from my PhD thesis.
Background
My interest in comparing the legal treatment of serial health risks in French and English civil liability stemmed from a theme that I uncovered while I was writing my master’s dissertation in France. At the time, I was working on issues of proof of causation in civil environmental liability in French and English law and discovered that, besides environmental cases, other cases raised similar issues of proof of causation.
Yet, these cases involved risks with diverse origins: the risks were occupational (asbestos, brick dust, mechanical vibrations, etc.), technological (electromagnetic waves, nuclear radiations), pharmaceutical (thalidomide, contaminated blood, DES, PIP prostheses, metal-on-metal hip prostheses, anti-hepatitis B vaccine, pertussis vaccine, etc.), food-related (BSE-contaminated beef), consumer-related (tobacco), industrial (Round-up) and environmental (pollution). More importantly, these cases triggered the application of different civil liability regimes: liability for defective products, nuisance, and negligence (employers/employees, producer/consumer, etc.).
Nevertheless, despite these important material differences, they also presented common features: claimants always suffered from diseases, a specific type of personal injury, and as a result, all cases were concerned with risks to human health; they were all connected to the widespread use of products and substances, therefore raising the number of victims to potentially catastrophic levels; finally, all involved serial damage, a legal concept sometimes used by continental legal scholars to refer to a type of damage that affects a number of people spread in various locations and at different times but connected to a common origin.
In summary, these cases were all dealing with health risks leading to serial damage which I will refer to as ‘serial health risks’. Given their common features, it was no surprise to observe that they often raise similar issues for the application of civil liability.
As I already mentioned, proof of causation is often a crucial issue in these litigations because our understanding of aetiology of diseases is generally fraught with significant gaps in scientific knowledge. As a consequence, the existence of scientific uncertainties is particularly challenging to the success of tort claims. Additionally, when numerous plaintiffs are similarly affected by the same substance or product, courts are likely to face a flood of tort claims. Large cohorts of claimants put a strain on the justice system, thereby leading to question whether the tort system is the best way forward in dealing with compensation, and if so, how it copes with large numbers of claimants.
Research question
While this area of litigation has become increasingly important both in the number of cases and in monetary value (potentially multi-millions pounds litigation), legal scholars have mostly purported to follow a sectoral approach, devoting their analysis to one legal issue at a time (causation, collective redress, etc.). I believed that a more comprehensive study of the interactions between serial health risks and civil liability was needed in order to bring clarity into this complex area of law and that drawing on the legal experiences of both the French and English legal systems could be beneficial to inform on how similar issues of civil liability were approached in legal systems with different legal traditions.
Through this comprehensive analysis, I sought to investigate how personal injury resulting from serial health risks was treated by civil liability in both legal systems.
Choice of jurisdictions and methodology
The French and English legal systems have been chosen because they have different legal traditions (civil law vs common law) and were influenced by European Union law. More importantly both legal systems were good comparators because they have had to deal with the same issues of serial health risks at a similar point in time using the same scientific knowledge available, examples being contaminated blood, asbestos or BSE. For this reason, the comparison of French and English responses to this new problem seemed particularly apposite.
To conduct my research, I borrowed from both functional and contextualist methods of comparison. When looking at the practical issues connected to the application of civil liability in the context of serial health risks and the solutions developed in French and English law to address them, I used a functional method through a careful examination of French and English jurisprudence. However, I believed this approach to be limited: while the solutions adopted in both legal systems could be functionally equivalent, they could nonetheless be justified by different reasons. Hence the real divergences between legal systems could well remain hidden if my analysis was limited to a functional approach. I therefore complemented my comparative work with an analysis of political and social contexts to identify the underlying reasons and objectives behind the adoption of solutions in French and English law.
Comparative findings
My main findings can be summarised as follows:
The comparative analysis revealed that French and English law are moving towards improving the protection of victims’ interests in the context of serial health risks.
For example, both legal systems introduced compensation schemes to provide victims of certain serial health risks with expedient compensation under more flexible requirements than that of civil liability. Such schemes have benefited victims of contaminated blood, asbestos, vaccines (France and England), Diethylstilboestrol (DES), Mediator, Depakine (France), and BSE (England). Furthermore, French and English legislators have introduced strict liability regimes in sectors of activity where serial health risks could materialise with the aim to facilitate defendants being held legally liable. The introduction of the nuclear liability regime and the liability for defective products are the most seminal examples (chapter 3).
Similarly, I show that collective redress mechanisms have been introduced in the French and English legal systems not only to cope with large cohorts of claimants seeking compensation through judicial process but also as a means to restore the ‘balance of power’ between plaintiffs (private individuals) and defendants (often large companies) through allowing individual plaintiffs to aggregate (Goliath v. Goliath). I demonstrate that the conditions to launch group litigations are designed to deal with victims of mass torts which include victims of serial health risks, although I also identified difficulties in both legal systems which impede the efficacy of these mechanisms in practice.
Finally, the analysis of case-law provided me with clear evidence that proof of the traditional requirements of civil liability (in particular causation) has sometimes been adapted to allow victims of serial health risks to succeed where they should have normally failed (chapter 5 to 10). Once again, this is indicative of the importance given to victims’ interests from a civil liability perspective.
However, despite these converging evolutions, I conclude that the treatment of serial health risks in French and English civil liability remains fundamentally different.
For example, the comparison of French and English compensation schemes in the context of serial health risks reveals that while French schemes are often designed as an alternative compensation mechanism to the tort system, English statutory schemes are engineered as a supplementary compensation mechanism to the tort system. In other words, where French compensation schemes generally compete with the tort system, English statutory schemes are created as a last resort mechanism and can only be actioned when all else fails. This important divergence underlines the fact that the French legal system readily separates compensation from civil liability in order to promote compensation while the English system continues to see the tort system as the primary route for obtaining redress. Similarly, while legislators on both sides have introduced strict liability regimes, their number remains limited in England while in France they continue to grow. This suggests a willingness by the French legal system to move from fault-based liability to strict liability. In contrast the English legal system is reluctant to depart from the fault principle to compensate personal injury resulting from serial health risks (chapter 3).
The application of tort law rules to situations of serial health risks is another striking example of the different approaches taken by the two legal systems. In chapter 2, I developed a detailed typology of serial health risks based on the level of scientific knowledge and distinguished ‘known’, ‘suspected’ and ‘unknown’ risks. In chapter 5 to 10, I used this typology to examine the judicial treatment of serial health risks in French and English civil liability. In French law, I found that the conditions of civil liability are consistently adapted, and that proof of these requirements are facilitated to ensure that the victims could obtain compensation, regardless of whether the situation is one where the risk is unknown, suspected or known. In other words, French law favours victims’ compensation in all situations of serial health risks. Conversely, the position is much more nuanced in English law: the less knowledge that is available as to the existence of risk, the less likely it is that relaxation of tort law will be accepted (chapter 6 to 10). As a result, proof of causation has been adapted where risks are known but not where risks are either suspected or unknown.
I argued that the aforementioned differences are not simply differences of degree between the legal systems. Rather they show irreconcilable views as to the role played by civil liability in the context of serial health risks.
When considering the balance between the protection of bodily integrity (claimants’ interest) and the protection of economic freedom (defendants’ interest), the French legal system took the clear view that the protection of bodily integrity is to be favoured in the context of serial health risks. To this effect, civil liability is simultaneously declining due to other compensation mechanisms emerging, and yet strengthened due to the introduction of strict liability regimes, collective redress mechanisms and relaxation of tort law conditions. These conflicting trends can all be explained when regarding the underlying goal being pursued in French law, which is ensuring that victims of serial health risks obtain compensation. The interests of defendants are therefore systematically sacrificed.
The English legal system has made another choice. While the protection of bodily integrity is undeniably important, it is not a sufficient reason, in and of itself, to sacrifice the defendants’ interests. Other reasons are needed to support a relaxation of the traditional rules of civil liability and examination of English case law reveals that judges are careful to evaluate conflicting interests to determine which one should be given precedence. This explains why the more scientific uncertainty there is with regards to the existence of the risk, the less willing English law is to relax the traditional rules of tort law. This approach reveals that English law is much more concerned than French law with the need to strike an appropriate balance between the protection of bodily integrity and the protection of economic freedom.
Finally, I found the legal treatment of serial health risks to be unsatisfactory in both France and England, albeit for different reasons.
If, as my analysis suggests, the French legal system is overly concerned with the compensation of victims of serial health risks, then the arrangements currently in place are not satisfactory, especially when considering the solutions crafted through legislature. French legislators have succumbed to the temptation to develop solutions on a sector-by-sector basis which can lead to victims being treated differently simply because serial health risks have different origins. For example, French legislators introduced collective redress for victims of personal injury in the health sector but not in relation to the food industry. As a result, thalidomide-type victims could benefit from group litigations but not BSE-type victims. I found this sectoral approach to be sorely lacking and difficult to justify.
The English legal system has favoured an approach whereby victims of serial health risks are treated differently depending on the level of scientific knowledge available. I argued that this approach can be justified and is more rational than that adopted in French law which differentiates victims according to the origin of serial health risks. Yet, the English approach is not without problems because it can also lead to victims of serial health risks being treated differently for no valid reason. English judges are trying to preserve a balance between conflicting interests (bodily integrity vs economic freedom) which results in relaxation of traditional rules to have limited applicability. In order to ensure limited applicability, English judges are drawing subtle distinctions between cases. For instance, the applicability of exceptional rules of causation (chapter 9 and 10) depend on whether the situation is one of alternative or cumulative causation, whether there is one or multiple noxious agents at play, whether the disease is divisible or indivisible. Hard cases often challenge the practicality of these distinctions and reveal that, as is the case in France, victims of serial health risks can be treated differently with little rationality behind the solutions. The worst example is linked to victims of asbestos where the solutions depend on whether such victims are suffering from mesothelioma, a specific disease linked to asbestos exposure, or not.
Conclusive thoughts
This comparative analysis was designed as a starting point. It aimed to provide a clear picture of the current position of how French and English law are dealing with the fallout of serial health risks from a civil liability perspective. Shortcomings have been identified in both legal systems which need to be addressed in future work to ensure that victims of serial health risks are treated more equally. The recent Covid-19 outbreak, probably the biggest serial health risk that our generation had to face, serves to reinforce this point.
Essential workers have put their lives on the line to allow for essential activities to continue during the lockdown. Healthcare professionals and carers primarily, but also supermarket workers, train and bus drivers, firefighters, postmen and delivery men amongst many others have had to work, sometimes in very close proximity to the general public, in order to deliver these essential services. Some of them, as we know, have died due to Covid-19 therefore raising the question of whether the State should step in to provide some type of compensation to essential workers and their bereaved families. It would appear that, once again, not all key workers have been treated the same. In particular, healthcare professionals and carers have benefited from special arrangements both in France and in England, a “privilege” that was not extended to other key workers.
While the nature of the work conducted by healthcare professionals and carers undeniably put them at a high risk of contamination from Covid-19, the same could be said of all key workers who have had to work in contact with the public. Why then should some essential workers be treated better than others? This latest example shows that unless we are planning on rethinking our general approach to serial health risks, the shortcomings previously identified in my work will be further aggravated.
This post originally appeared on the British Association of Comparative Law Blog and is reproduced here with permission and thanks.
On 6 October 2020, Drag Race UK participant Crystal publicly announced her intention to pursue a defamation action against actor and aspiring politician Laurence Fox after calling her a ‘paedophile’ on Twitter.
The comment was made in relation to an earlier tweet posted on Sainsbury’s account, which expressed support for Black History Month. Fox accused the supermarket of promoting ‘racial segregation and discrimination’ and encouraged people to boycott the groceries retailer. Crystal criticised Fox’s tweet, writing: ‘Imagine being this proud of being a racist! So cringe. Total snowflake behaviour.’ In response, Fox tweeted: ‘Says the paedophile.’
The reality show contestant claimed that Fox’s comment on the microblogging platform amounted to ‘homophobic defamation’. In her statement, she said: ‘An accusation of paedophilia is one of the oldest homophobic tropes, and it was very shocking to have that levelled at me, not just by Mr Fox, but also his many followers who believed him. I may have had to endure homophobic bullying as a child, but I will not tolerate it as an adult.’
Crystal is the second individual seeking to bring a legal action against the actor over comments on the social networking platform. Simon Blake, deputy chair of the LGBT rights organisation Stonewall, also advised his lawyers to begin defamation proceedings against Fox, after the actor called him a ‘paedophile’ as well. Earlier, Blake had challenged him over his Sainsbury’s tweet by writing ‘What a mess. What a racist t**t’, to which Fox replied: ‘Pretty rich coming from a paedophile.’
Fox subsequently deleted his tweets, but screenshots continued to circulate online. He appears to have regretted posting these comments. In a Channel 5 interview, he stated: ‘It was in response, possibly, to 10 months now of being called a racist by people on Twitter, which I think is a career-ending slur, actually, and I find very hurtful. If the point is that words mean nothing, seeing as it’s a totally baseless allegation and is entirely in opposition to what my feelings are, I thought, you know what, if words meaning nothing nowadays, I can call you anything I want in return. Was it my finest hour? No.’
Defamation is committed by publishing a statement which lowers the reputation of the person referred to. In order to succeed in an action for defamation, the claimant must prove that the statement complained of was defamatory; that the statement was published and referred to the claimant; and that the publication of the statement has caused or is likely to cause serious harm to the claimant’s reputation. Whilst it is well-arguable that Fox’s tweets could provoke strong feelings against Crystal and Blake, the introduction of a serious harm threshold is one of the major changes introduced by the Defamation Act 2013 and is likely to prove a challenge when/ if these cases come before the court.
The early judicial opinion in Cooke and Anr v MGN Ltd and Anr[2014] EWHC 2831 suggests that in cases involving grave imputations serious harm will be so obvious that the need for evidence can be dispensed with, such as where an individual was wrongly accused of being ‘a terrorist or a paedophile’ in a national newspaper (Mr. Justice Bean, para. 43). More recently, however, the Supreme Court held in Lachaux v Independent Print Ltd and Anr[2019] UKSC 27 that, in assessing whether a publication has caused serious harm to reputation, the meaning of the words and their inherent tendency to do harm are not the sole factors. As Lord Sumption stated:
The reference to a situation where the statement ‘has caused’ serious harm is to the consequences of the publication, and not the publication itself. It points to some historic harm, which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. The same must be true of the reference to harm which is ‘likely’ to be caused. In this context, the phrase naturally refers to probable future harm.
Para. 14
So, the threshold has been raised and its application is to be determined with reference to a two-pronged test, i.e. the meaning of the words, plus their actual impact. The Supreme Court recognised, nevertheless, at para. 21 of the decision that inferences of fact can still be drawn from the circumstances and context of the publication, including factors like the scale of publication and the gravity of the allegation(s). The same court confirmed the importance of context in Stocker v Stocker[2019] UKSC 17, where the fact that publication was in a Facebook post was critical, as Facebook is ‘a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre-eminently one in which the reader reads and passes on’ (Lord Kerr, para. 43). Twitter is not too dissimilar. One of the messages sent is that in many instances not much thought is invested by people publishing on forums like these, and so far as defamation is concerned, ordinary readers on such platforms recognise this and are not overly analytical: ‘People scroll through it quickly. They do not pause and reflect. They do not ponder on what meaning the statement might possibly bear. Their reaction to the post is impressionistic and fleeting’ (Lord Kerr, para. 44; see also Monir v Wood[2018] EWHC 3525, para. 90, Mr. Justice Nicklin).
A similar approach had earlier been taken in Monroe v Hopkins[2017] EWHC 433, in which Twitter was seen by Mr. Justice Warby as ‘a conversational medium’ to which ‘an impressionistic approach is much more fitting and appropriate’ (para. 35), taking into account the immediately surrounding contextual material. But, would it be fair to say that crude, provocative and controversy-seeking messages on Twitter are not often taken seriously because they are considered by ordinary readers ‘mere abuse’ or are perhaps expected in a forum of this nature? And, does it follow that the harm suffered will often be less serious? Every case depends on its own facts, but in Monroe, Mr. Warby Justice had little difficulty in accepting that the absence of evidence that a tweet was believed was not evidence of a lack of harm (para. 71).
Ultimately though, does it really make a difference if someone is accused of paedophilia in a ‘casual’ social medium like Twitter or a national newspaper? In our multi-mediated world, the so-called ‘trial-by-media’ – which often involves a sensationalist, moralistic speculation over the actions and motives of those who find themselves accused in the ‘court of public opinion’ – extends beyond news stories produced by professional journalists to also cover claims made on social media. More importantly, the age of ‘fake news’, the Jimmy Savile scandal and the #MeToo movement is also an age of mistrust towards society’s institutions (including traditional media organisations), especially when the matter at issue is paedophilia. From this perspective, social media have the power to challenge the top-down information flow in contemporary democratic societies and therefore their ordinary users might attribute more importance to content like Facebook posts or tweets than they are often assumed to.
With regard to how a tweet containing accusations of paedophilia could be interpreted, it is also worth briefly noting here the similarities between Fox’s case and that of the equally temperamental Tesla CEO Elon Musk, who was sued for defamation in the USA by a British cave explorer, Vernon Unsworth, after Musk called him a ‘pedo guy’ on Twitter in 2018. Musk claimed at the time that he used the term as a generic insult meaning ‘creepy old man’ and not with the intention to literally accuse Unsworth of paedophilia – an explanation that was accepted by the Los Angeles court which cleared Musk a year later. However, coming back to Fox’s tweets, an assessment of the harm they could cause to the claimants’ reputation would be deficient without a careful consideration of their identities and, particularly, their sexuality. Targeted towards two members of the LGBT community, Fox’s claims acquire an additional layer of meaning (and by extension, a greater capacity to harm) as they allude to the homophobic myth conflating homosexuality with child predation and paedophilia.
Post-Lachaux case law indicates that solely relying on the inherent tendency to cause harm may not be optimal for the success of a libel claim. Adducing as much evidence as possible can maximise a claimant’s likelihood of success. This could include: first, reliable evidence as to the extent of publication. Although Fox’s tweets were deleted, a sound assessment can still be made of the scale of publication through a combination of the number of his followers, the number of profile visits to his ‘home page’ and Twitter analytics. Hence, efforts should be made prior to the deletion of the tweets to obtain and preserve the analytics data regarding publication. The importance of Twitter analytics was noted by Mr. Justice Warby in Monroe (para. 84). And, even if a tweet is deleted, ‘what matters […] is not the period of time for which a person is exposed to the message but the impact the message has’ (Monroe, para. 71). Second, evidence of serious harm in the form of abusive tweets from other Twitter users who had read the tweet complained of can also be helpful, so long as the alleged abuse is causally linked to the offending tweet and reflects harm to reputation (see Monroe, para. 71). Third, evidence of substantial further indirect (“grapevine”) dissemination of the allegations complained of would be useful; as Fentiman v Marsh[2019] EWHC 2099 suggests, the likelihood of repetition of the allegation beyond the original publishees may be ‘typically’ inferred in cases involving social media (para. 55). Finally, evidence of the statement’s adverse effect on the way right-thinking members of society generally would treat the claimant could strengthen the serious harm argument, but the absence of direct evidence of adverse impact does not of itself mean a claim should fail. As noted earlier, Lord Sumption in Lachaux referred to the court’s ability to draw inferences and to the ‘inherent probabilities’ (para. 21).
At the time of writing, letters of claim have not been issued. If, however, the cases eventually reach the court, a difficult evidential burden will have to be shouldered. In the absence of such evidence, serious harm arguments may be open to question and weakened.
Essex Law Research Blog 