Much has already been written about the Rebekah Vardy -v- Coleen Rooney trial outcome since Mrs Justice Steyn passed down her judgment a week ago, with many commentators adopting own goal football puns and a focus on how the case illustrates quite dramatically the risks inherent in libel claims. The fact that adverse findings were reached as to Vardy’s credibility as a witness, and in relation to her probable deliberate deletion/destruction of evidence, have also been widely reported.
Having reflected on the judgment, we focus here on the interesting points of libel law coming out of it.
Briefly, as this is well trodden territory: the case was actually quite straightforward. The meaning of Rooney’s social media post ending with the now famous expose “It’s….Rebekah Vardy’s account” had already been established as a preliminary issue – broadly that Vardy had regularly and frequently abused her status as a trusted follower of Rooney’s personal Instagram account by secretly informing The Sun about private posts and stories. The fact that this was defamatory was accepted, as was the fact that it was likely to cause “serious harm” (seemingly a late concession). Rooney relied on the defences of truth and publication on a matter of public interest, and the central issue for trial was that truth defence – could Rooney prove that the meaning was 'substantially true'. Of course we all now know that she could and did, based in large part on evidence secured during her now famous 'sting' operation involving the proactive use of her Instagram account to plant fake stories which only Vardy could view.
All interesting, but what is of legal interest?
On the truth defence, Mrs Justice Steyn referred to existing authority that a Defendant need not prove the factual truth of every finer detail, just the central core of the libel There is nothing new or novel in that, but it serves as a helpful reminder to libel complainants that the ability to isolate elements of untruth within a publication (often fine details) will not necessarily knock out the truth defence if those details are peripheral to the core meaning and the essential sting is proved to be true.
Of perhaps more interest were the Judge’s comments in relation to the public interest defence, which occupied the tiniest proportion of the judgment (it was not necessary for Mrs Justice Steyn to spend long on the alternate defence having already found that the post was substantially true). The interesting point is this: the judgment clarifies that the public interest defence involves three questions: (i) objectively, was the publication on a matter of public interest? (ii) did the Defendant believe the publication was in the public interest? (a question of state of mind) and (iii) was that belief (and by extension the actions taken) reasonable – again an objective test. The finding was that the exposé was a matter of public interest and that Rooney believed that. However, the alternate defence fell at the final question/last hurdle, with the ruling that it was not reasonable in all the circumstances for Rooney to have published without first contacting Vardy to give her an opportunity to respond.
So why is this interesting?
As we know, this finding did not affect the ultimate outcome as the alternate defence, truth, was made out. But to our mind it raises some interesting questions about what then should have happened in the counter-factual where Rooney had first put the allegation to Vardy. If Vardy admitted the allegation, was Rooney safe to publish as public interest? Alternatively if, consistent with what she went on to do, Vardy denied it, what then? Was Rooney required to reflect that denial/response in her post – in much the same way as would be expected of a journalist having sought comment from their subject? In short, are all publishers expected to meet the standards set down for the mainstream press and to invite comment before publishing? No doubt the answer may be that the finding was case specific, rather than setting a benchmark for all cases, since that third question has to be asked with regard to 'all the circumstances'. But again it stands as a cautionary note, this time to Defendants, that objective/obvious public interest and a belief in that do not alone guarantee the application of the public interest defence and that the third element, that test of reasonableness, should be considered carefully too ahead of publication.