High Court awards Elliot £48,750 damages [plus costs] for Flanagan libel

Whilst waiting for the Sinn Féin Ard Chomhairle to ratify his re-selection as a candidate in Fermanagh/South Tyrone, at the second time of trying, notorious tweeter Phil Flanagan, MLA, has discovered the cost of his “grossly defamatory” libel against former UUP leader, Tom Elliot, then MLA, now MP for FST.  As the BBC reports

The High Court in Belfast has awarded almost £50k in damages to a former Ulster Unionist leader over a defamatory message posted on Twitter.

Mr Justice Stephens awarded Tom Elliott £48,750 compensation following a tweet by Sinn Féin’s Phil Flanagan.

That’s a bill of £48,750 plus costs.

And, as I’ve already explained, the NI Assembly’s public liability insurance never covered the libelling of another MLA.

Adds The RTÉ report notes

Mr Justice Stephens ruled that Phil Flanagan’s untrue tweet about political rival Tom Elliott’s conduct during his previous career as a soldier was grossly defamatory.

The “baseless” allegation was aggravated by Mr Flanagan’s failure to publish an apology until the former UUP leader took him to court, he held.

The judge said: “To state that a senior politician, who had been the leader of a political party in Northern Ireland, was responsible for harassing and shooting people during his service with the UDR (Ulster Defence Regiment)… is a most serious libel.”

Deciding that the comments merited £75,000 in damages, the judge reduced that figure by 35% to reflect steps since taken by Mr Flanagan, including his ultimate apology and offer to pay damages.

He awarded £48,750, but put a stay on any payout until Mr Flanagan resolves his legal action with insurers used by Assembly members over a refusal to indemnify him.

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  • PeterBrown

    Semi- is a Latin prefix to a verb, noun, or adjective meaning “half”.
    The prosecution rests ;-p

    deliberate: to think about or discuss something very carefully in order to make a decision
    there were no decisions about what was said or who said it as anyone who has actually read the judgment would know – again the prosecution rests

  • PeterBrown

    If I am a bottom feeder how do I keep digging? Could you lend me your spade?

  • PeterBrown

    and if they don’t take it then proceedings can be issued – as in this case

  • Graham Parsons

    Embarrassing.
    Semi can also mean “partial”.
    Deliberate can also mean “consider”.

    With such a slap dash approach I wouldn’t consider you for legal representation.

  • PeterBrown

    It was embarrassing for you but you did ask – its Latin can you point out anywhere in Latin where it means anything other than half? And they still didn’t consider what was said and who said it as there was no dispute about that but you keep digging….

  • PeterBrown

    http://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/Practice%20Directions/Documents/Pre%20Action%20Protocol/j_j_PRE%20ACTION%20PROTOCOL%20IN%20DEFAMATION.htm If there was a clear defamation and you have a reputation worth protecting (usually but not exclusively related to wealth or power or both) then there is no risk…

  • Graham Parsons

    To keep the debate technical, though I know that’ll be tough ask for someone from the legal profession, you may have heard of something called a semiconductor. That doesn’t mean that it conducts only 1/2 just somewhere between an insulator and a metal. In other words “partial” conductivity. Keep digging.

  • Kevin Breslin
  • Kevin Breslin

    Fair enough, poor Tom might not get much after his legal team is done with it.

  • Jollyraj

    Certainly provides a possible motive for a person or persons within the the party wanting to rig the result against Flanagan, though

  • PeterBrown

    I’m not sure that the Romans had semi conductors and that it is a Latin word which is what I asked for though semi’s definition is a distraction from the fact that you described Twitter as half / semi public therefore implying that it was half / semi something else are you taking issue with my use of private which was actually the key word or are you going to accept that like you have deliberate?

  • PeterBrown

    Plus costs not out of the damages – I suspect Phil might be wishing he’d followed through with the proposed early apology now

  • PeterBrown

    If misinformation in that context was actionable in the courts we’d have no politicians and no media left and Jim Wells would have won the lottery just from Slugger contributors

  • Graham Parsons

    Wrong again. I did not say half public I said semi public which in this context means partially public. You really seem to have a problem with modern language. Again not surprising for the legal profession that remains stuck in the past.

  • Graham Parsons

    You missed the followers bit and the fact that this a conversation.

    The judgement used the term aggravated , made more serious. In other words it was still deemed a serious offense without the apology.

    Are you going to,answer my question yes or no, if the SF politician had apologised would he have avoided legal,action?

  • PeterBrown

    Given that you are apparently semi literate read the question again – it is not about semi / half I was asking about the corollary of public – is it private?

  • PeterBrown

    As has been explained before there are no hard and fast rules everything is dealt with on a case by case basis. However there will be some defamations where a timely apology would prevent litigation but accusing someone of a serious crime is probably not one if them so probably not in this case

  • Graham Parsons

    Your grammar is so poor I’m struggling to understand what you mean. A few punctuation lessons might come in handy. You still can’t seem grasp that semi doesn’t have to mean half and until you do this you won’t be able to understand what is meant by semi public.

  • Graham Parsons

    At long last. The answer is No. Even if he’d apologised he would have faced legal action.

    And don’t give me nonsense that a decision on whether to litigate is based on the seriousness of the offense when we all know, and have discussed elsewhere, the decision is based on whether there is money to be made.

  • SeaanUiNeill

    The real issue would be to what level of proof “should social media posts be held”. Something being true and something being provable are two distinct things. Something may have happened but there may be no clear evidence that will satisfy the law that it actually happened, and on this negitive issue a guilty person may be sucessful in legally silencing an honest person’s “sæva Indignatio.” Not that this would be at all aplicable in this situation…..

    As John Byrom said about a great eighteenth century political deception, whose dire consequences we in the wee six continue to live with:

    “But who Defender is, and who is King,
    God bless us all, that’s quite another thing……..”

    http://izquotes.com/quote/215775

  • SeaanUiNeill

    “Every day thousands of people are abused and libeled on social media. In reality only the rich and powerful get the chance to go to court to defend their reputation.”

    Are you claiming, Peter, that this is not so? Perhaps not in this situation, but those attempting to find redress for a smearing of their reputation by published lies will need to be able to pay good lawyers to argue their case, should the person putting forward lies has wxpensive legal advice. This is not simply one way traffic. On the other hand the law may be effectively “bought”, for example, when those trying to find redress for celebrity rapes are constrained by the current burden of legal proof strongly favouring those who have abused them. There is serious need to re-balance a legal situation that encourages ill doers to supress truth.

    While this is not the situation in this particular case, hypothetically, had Tom Elliott been culpable, he would have enjoyed the same verdict if the high standard of proof the law demands in such situations could not have been met.

  • PeterBrown

    Look up corollary – if you cliam it is semi / part public what is the rest (I assume private which is nonsense)?

  • PeterBrown

    Civil courts burden of proof = balance of probabilities(50%+) criminal burden of proof = beyond reasonable doubt (99%) – see OJ Simpson / Omagh criminal v civil trials

  • PeterBrown

    See above re criminal v civil burden of proof – criminal it is better that 99 guilty go free than 1 innocent be convicted, civil 50/50

  • PeterBrown

    And so it should be if you publically accuse someone (in this case an unimpeachable prominent public figure) of murder and other criminal offences without justification then why should you get off with an apology. If you accuse someone less prominent of something much less serious then an apology may suffice. let the punishment fit the crime / civil wrong

  • Graham Parsons

    Of course it is semi private as well. I just chose not to use that term. For example you only share your post with your followers. You could have 2 followers or you could have 5000 followers. Even then most of your followers may not see your post due to the impermanence of social media. This is why I used the term semi public. The law doesn’t seem to understand or is deliberately misunderstanding the nuances of social media.

    Happy to see you are starting to understand the meaning of semi.

  • Graham Parsons

    Do we need to go over this again. Why should you get off with an apology:

    Because the person making the accusation on social media may not understand the legal implications of what they are doing believing they are participating in a conversation with their followers.

    They are making the comment on a medium that is different to for example a national newspaper or a newspaper web page and obviously a business entity.

    The law in this case isn’t being applied evenly, the legal profession is simply following the money, ambulance chasing. They for example did not chase the retweeters.

  • PeterBrown

    Apparently we do need to go over it again- as I have said before defamation is not limited to the media social or otherwise it can include what you would seem to be private conversations so why should social media be exempt if speaking the same words instead of typing them would not be?

  • Graham Parsons

    Doh, because social media is a more public forum. The conversation is more exposed to scrutiny. Do you normally listen in to other peoples conversations to look for offence? I’m sure you have said things in conversations with a few people that you aren’t proud of. Are you going to turn yourself in?

    I don’t really care what the law is today. I’m saying it needs to change to reflect changes in technology.

  • PeterBrown

    Doh? Seriously? So private conversations are liable but (semi public) conversations are not? Seems fair? If reputations are falsely damaged then there should be restitution – you are forgetting about the victims

  • Graham Parsons

    Go back to my 3 points above if you are struggling. How often does someone having a private conversation get sued by a 3rd party who was not part of the conversation?

    Ah the victims. Won’t someone think about the victims? You mean the rich and powerful victims? What about the person who is financially ruined for a single mistake on social media?

  • SeaanUiNeill

    Oh Peter, I know that, but it is very hard to watch this 1/99 ratio applied to cases of rape, especially if you have some experience of those who have suffered abuse and turn to a legal system that only trusts them to a single percentage! Such people customarily watch their abusers go free, and are themselves stigmatised by an uncaring world that asks why their action was withdrawn or failed, if it was true. Defamatory libel may be claimed, as I understand it, by anyone accused of rape because of the criminal nature of the offence. That is why it was so hard to out Saville or Cyril Smith, as it is the first line of defence for any celebrity or politician when such issues are raised. The 99% assumption of innocence may have been occasioned by such gross miscarriages of justice as the Thompson Bywaters case in the interwar period, but has become a charter for criminality for those who may call on lack of evidence. There is much to be said for the wise old Scots judgement of “not proven” as a more accurate reflection of realities in a world where justice and law are often perfect strangers to one another.

  • SeaanUiNeill

    Still did not make the Cabbage patch “King” anything more than a political appointee for other men’s interests. And see my comments below on the 99% “reasonable doubt” issue that is frequently defined more popularly as “incontrovertible proof”……..

  • PeterBrown

    Defamation doesn’t have to be permanent (see TV or radio) and the dmages in part reflects the number of followers and extent of publication (read the judgement) so what needs reformed? (Semi is still half by the way if electronic engineers didn’t realise that then its their fault not mine but the issue was not the proprortion but the fact that even social media is partly public whether temporary or permanent)

  • PeterBrown

    But why should the injured party not be compensated just because the defmer claims they didn;t know the law? Ignorance of the law is no defence in other areas why should telling deliberate lies (defamation) be any different) you are again forgetting the victim?

  • mickfealty

    Think you’d get a hard rap from the Speaker. But it would at least have been timely and proportionate.

  • mickfealty

    Tough work, but someone’s got to do it.

  • mickfealty

    We do ban people occasionally for just refusing to engage with other commenters.

  • Lionel Hutz

    Beyond reasonable doubt is not >99%. It’s not really quantifiable at all. It can depend on the case and theres a general reluctance to get into statistical quantification of reasonable doubt.

    But it’s not beyond a shadow of a doubt or beyond all doubt or even beyond doubt. Otherwise no one would be convicted of anything.

    I’ve heard it said that it’s something like 70-80% sure. That’s not reliable. But the reasonable doubt in the end must be a significant doubt.

    Sorry to be critical. I agree with all of your other definitional points of argument 😉

  • Lionel Hutz

    Just on the point some are making about the state of social media and the extent to which it should be subject to libel….

    I think there is a difference in what the consequences are of a libel depending on the nature of the publication. But this doesn’t stop a libel being a libel.

    So there is a difference between a libel on the front page of a newspaper and a libel on a twitter account. But that’s about damages. If the Irish news printed this about Tom Elliot, the damages would be significantly more.

    Twitter’s reach depends on the user. I have a twitter account that I don’t use except to follow whatever # is used come election time. I never post. If I libelled someone, the fact that no one would notice would be a factor in damages.

    In that context, Phil Flanagan is using a platform that is now customarily used by public figures to speak to their constituents. Everyone is at it, even the Pope. It’s as real a form of communication as an MLA sending out leaflets.

    And the tweets or whatever they are called don’t ever really get deleted. As I’m sure Mick Fealty and other moderators are alive to when considering the posts on this site. You really have to be careful.

    Carelessness, and lack of humility. It’s cost Phil this time. And he deserves it.

  • PeterBrown

    Mick he has engaged just not very productively but don’t worry if you ban him actions online should have no legal consequences…..

  • PeterBrown

    The 99 v 1 comes from the 99 guilty going free to prevent 1 innocent being wrongly convicted so its probably wrong to put a % after that. A plea of guilty with mitigation rather than a contest as it were but no consequences because it all OK if its online….

  • PeterBrown

    Rape is a very difficulty thing to deal with because its often all about consent and with one persons word against another its hard to reach the required standard of proof (compounded by the wild card of a number of well publicised false allegations possibly being extended by jurors to cases where the allegations are true). Not proven has no consequences for the defendant other than a blot on their character which is probably not much worse than the accusation itself….

  • PeterBrown

    You’d be surprised how many old style private verbal conversations gave rise to libel actions without it even being recorded for posterity. Nice dismissal of the victims – weren’t the parties here really on a par and if the offender refused to take a number of opportunities to make amends short of litigation and therefore doesn’t deserve much sympathy?

  • Lionel Hutz

    I’m not disagreeing with your substantive responses.

    Just a little note on what reasonable doubt means. Yes there is a justification that it’s better to let many guilty people go free than risk one innocent going to prison. But then again as any casual observer of the justice system will know, innocent people are convicted all too frequently. And that’s just the ones we know about…..

    I’ve seen others post about incontrovertible proof. I’m not sure that’s an accurate understanding. The example of rape cases being brought up….it may well be a tragic consequence that too few rape victims are given justice….but I just don’t see a way around it. It’s tempting to believe that it would be a very rare thing indeed for a woman to fabricate a rape allegation and they should be believed. Its cleary a dsigusting thing to do to make up such an allegation. Its Tempting but its naive. As disgraceful as it would be to make up such an allegation, it does happen and in a sense it’s arguably much less disgusting that actually committing a rape so perhaps it is rather easily conceivable.

  • SeaanUiNeill

    Having worked in the media, Peter, perhaps I’ve just met more smug abusers than you may have, and spoken to those whose lives have been utterly destroyed by such people getting away with their abuse. I’ve even had two friends who committed suicide after over twenty years and more of trying to live with seeing their abusers successful and flourishing in their media or political careers.

    I would not risk any legal problems by mentioning names, but I’m assured in myself that “a number of well publicised false allegations” are simply the fruit of the the very problem of proof you mention. As I’ve said above the extreme difficulty off proving rape allegations has been cynically used by the perpetrators to suppress charges and silence their victims with threats of criminal libel actions by their legal teams. That and threats to the families who, coming from the same social mileau, are well aware of the shocking power to harm of the abusers.

    I’ve heard from friends involved in the documentaries exposing abuse that Saville used to actually go and eyeball those who tried to seek legal redress in order to show them he had no fear whatsoever of the law.A personal story, my brother in law was violently groped by Cyril Smith during a long car ride in Smith’s sports car, and thought because he’d had a private education himself and knew the same kind of important people that he could easily bring this into the open. He soon learnt his lesson, with a surprising spate of ostracisms at many levels of his life, and serial dismissal from jobs once employers were told that he was “a dangerous loose canon” who could not be trusted to keep his mouth shut in difficult situations.

    I’d disagree strongly about your final comments. “Not proven” lets the victim know that the jury believes them, even if the absurdly strict burden of proof ensures that, as things now stand, it would be their character that was publicly blotted, smeared by the suggestion of “false allegations” by those who naively believe that an acquittal actually implies complete innocence of an offence. Accordingly the blotting of the character of an offender hiding behind the law’s strict demands of proof to escape all retribution and possibly repeat their abuse would be a most valuable and productive outcome in such situations. Have you not noticed that only the dead have actually been effectively outed as abusers, and that few of those possible elite abusers who have been named who are still living have even entered a court room and continue to receive strong public support for their presumed possible “innocence”? I’d suggest this shows that the law currently almost encourages abusers activities by its structural blindness to the plight of victims.

  • barnshee

    “at doesn’t mean that it conducts only 1/2 just somewhere between an insulator and a metal. In other words “partial” conductivity. Keep digging.”

    Er no it only conducts in one direction ie half of the directions available