If we sound like know-it-alls for telling Katie Hopkins what she should have done, it’s only because we learned the lesson ourselves – and we learned it the hard way. What can you expect if you ever try to pick up a fight with someone over a threat of defamation? Something like this…
We’ve been writing the Popbitch newsletter for a long time now. Seventeen years, to be precise. In that time we’ve published more than 820 issues. With an average of 10 stories in each, that’s well over 8,000 stories. Throw in 30-odd magazine issues and 15 years’ worth of gossip, innuendo and accusations on the Popbitch messageboard and we’ve probably given the rich and famous more than a million reasons to sue us.
But some celebrities, they only need one.
People get their lawyers out for a variety of reasons. Some are just vain or thin-skinned. Others may have some stuff going on elsewhere and will look for any opportunity to shut down a small story in order to shield a bigger one. A few of them are genuinely defamed.
Whatever the reason though, there’s isn’t a media company out there that breaks stories about the powerful and celebrated who won’t feel the hot breath of lawyers some day.
As you can imagine, at Popbitch we get it more than most.
Much of the time you can defend your stories and will be able to head off all the bluster and threats thrown your way. Other times you have to be happy to hold your hands up and say you maybe got things wrong.
But the rare moments where someone won’t back down, so you feel obliged to defend yourself and pursue a full legal case – like you’re some maverick trailblazer, upon whom the fate of the innocent rests?
These are the times you need to stop, take a deep breath and consider – really consider – is this worth it?
We know this because we’ve tried it and it did not go well.
As a public service then, to prevent any of you getting yourselves wrapped up in costly, time-draining litigation, consider this a guide as to how to spot the warning signs that you may be about to get yourself mangled by libel proceedings.
You hear a story about a fairly amusing D-list celebrity. The story sees the star engaged in some mildly disgraceful behaviour, and they somehow make a minor spectacle of themselves.
This comes from someone you know and trust. And while they weren’t an active participant in the disgrace, they were party to it. It’s about as good as a firsthand tale gets, you think.
Moreover, the story seems entirely in character for the celeb involved (or, at least, the public image of the celeb involved). So you write it up. As it’s a funny sort of story, and you aren’t alleging anything criminal or wildly immoral, you don’t pay particular attention to the wording or anything. You just chuck it together as you heard it.
(NB: If you really want to follow in our footsteps, you should go on holiday immediately after publication. This will make it very tricky to get in contact with anyone which really adds a delightful sense of dread and disaster to the proceedings…)
The next morning you check your email and there’s an email from a prestigious (and reliably ferocious) law firm.
This is no big surprise. There often is. However, this email seems a little bit frostier than usual. It’s more pointed than their regular huffing and puffing. They’re not just throwing their weight around, trying to justify their fee with a few important sounding words. They actually want something done this time – a retraction emailed to all readers – and they want it done right away.
Lawyers will often demand instant remedies in the hope of scaring publishers into immediate retractions, so it’s good to check with your own lawyer to see what sort of timeframe the law gives you to consider your next move. As long as you acknowledge the lawyer’s letter you do get a fair amount of time (a couple of weeks or more to check your facts/sources) before you have to decide whether to comply. If you get the immediate feeling that you might have got it wrong you can, of course, choose to show how contrite you are by doing what’s asked at once.
If you were being sensible, what you would have done before publishing is to establish the context to this story. For example: is the celeb in question in a relationship? Could that relationship potentially be a bit rocky? Is their professional image likely to be dented? If you print what you think is a fairly innocuous story, could it maybe stir up a bit of unintended trouble at home or at work? Trouble that might cause a person to come gunning for you?
Even if you didn’t ask these question before publishing, you should still take this time to consider whether questions like these might make your response to his lawyers a bit more conciliatory.
Again, you have the chance to bow out now and make it all go away. It will cost you, in both pride and money, but any apology now would be looked on favourably by a judge or mediator.
Still going ahead with it? OK…
The lawyers tell you they are taking detailed instructions and want a public apology, a statement in open court and payment of costs and damages.
You tell the lawyers that you are looking into it, and you sit down to figure out the situation.
There are two real options here. Either this is a pose (many legal letters are sent simply to put the frighteners on you, and once the celeb has calmed down they will be happy enough just knowing that they’ve put you in your place); or the letter means what its says. They want the apology, the statement, damages. The whole package.
You’re going to guess – given that they’ve included some proper threats in their letter – that they’re not bluffing. They’re sincere about taking you to court and they’re ready to fight you.
You go back to your sources. They haven’t changed their tune. So what do you do? Kowtow to a bunch of heavy-handed lawyers? Or do you take them up on this fight?
With the benefit of hindsight, we can tell you that your best option isn’t likely to be the latter. If you are going to take lawyers on, you have to be better prepared. You may think you’ve got a pretty good case and that common sense will probably win out but, believe us: it needs to be absolutely watertight before you head to the Royal Courts of Justice.
The option to fold and walk away is still here. It’s getting increasingly expensive, but it’s still there.
Fancy pressing on?
You find out that this law firm has sent out a blanket legal warning to all newspapers and magazines telling them not to republish what you wrote.
They are coming after you with the big guns. They are isolating you for retribution.
Alarm bells should be going off left, right and centre at this point. For such a seemingly frivolous story, it almost doesn’t matter if it’s true or not. Something has really touched a nerve here and now is as good a point as any to start considering holding your hands up and issuing a retraction.
Keep in mind, most lawyers (though not all) just want a case closed as quickly as possible with their client’s feelings soothed. Very few people want the hassle of dragging these things out, so you can still escape this all relatively unscathed.
But, for the sake of seeing the story through, let’s say you decide this is actually a hill that you’re prepared to die on. That you wish to take up the simple sword of truth, hope that the trusty shield of British fair play will be your guide and come what may.
So you tell your lawyers, to hell with settling now. This is a point of principle. You won’t be bullied. Tell them they can go fuck that retraction.
Even at this point, you still have time to tuck your tail between your legs and make an offer of amends to them through their lawyers. Or you can demand to see a QC.
You trot off to the Temple and meet with your silk. He tells that you he’s a big fan of Popbitch and that there’s nothing he’d like to do more than defend its honour in court – but he feels as if he has some important questions to ask.
1/ Have you got at least £250,000? Because, no matter how right you are and how well things go, it’s still hard to second guess how judges and court cases go. You need to be perfectly happy to lose this sort of sum. Are you?
2/ Even if your sources are completely correct, are they going to be prepared to stand up in court and defend this?
3/ Can you be absolutely 100% sure that every single word you wrote was right?
If you can answer ‘yes’ to all three, then the QC will be happy to take the case on.
What are your answers? Being totally honest, they are these:
1/ Er, no.
2/ Do you really want to put a couple of innocent people up in court to testify something that might see them lose their jobs? Having to defend repeating a silly little bit of office gossip? Getting cross-examined by a top barrister about what happened at a party after a few drinks? There are stories you’d do that to defend, and there are many people you know who would happily get up on the stand. But is that this story?
So what do you do?
This is the last possible moment to cave in and do what they want. Or at least put it in the hands of your long-suffering lawyers and see how best they can get you out of it.
It won’t have been cheap (you’ve long since passed five figures in legal bills). You’re also going to have to pay out damages that the claimant may have been prepared to overlook had you not aggravated them to such a degree (again, that could easily be another five figures). One of your lawyers may never quite forgive you for having to go and read a statement on your behalf in court, and you will also have to sign up to words of an apology that you never imagined you’d have to offer.
But at least now, finally, you’re out of it.