I was just looking at viewing figures for the Court of Appeal on YouTube.
The case before mine came in at 156; the one after, 67.
Riley v Sivier: 3,400.
How nice to be popular!
But I wonder how many of those were repeat views by people trying to understand what was going on. The suited and bewigged inhabitants of Court 70 seemed to be arguing about things to which the casual viewer wasn’t privy.
This article is an attempt to address that.
So for a start, let’s look at my grounds for appeal.
One of my defences was that I had published my article about Rachel Riley and the teenage girl with anxiety issues who suffered sustained abuse on the social media for daring to criticise the TV parlour game-player because it was a matter of public interest.
According to the Defamation Act 2013, it is a defence to an action for defamation for the defendant to show that— (a) the statement complained of was, or formed part of, a statement on a matter of public interest; and (b) the defendant reasonably believed that publishing the statement complained of was in the public interest.
In determining whether the defendant has shown this, the court must have regard to all the circumstances of the case, and must make such allowance for editorial judgement as it considers appropriate.
For the avoidance of doubt, this defence may be relied upon, irrespective of whether the statement complained of is a statement of fact or a statement of opinion.
So the task for our justice system was to determine three issues:
i) was the statement complained of, or did it form part of, a statement on a matter of public interest?
ii) did the defendant (that’s me) believe that publishing the statement complained of was in the public interest?
iii) was that belief reasonable?
The first and third issues are objective – it either was or wasn’t, depending on whether it meets the relevant criteria. The second issue is subjective – it’s about what I believed at the time I published the article.
In respect of the second and third issues, the truth or falsity of the allegation complained of by Rachel Riley is irrelevant. The defence can apply to an untrue statement (or in this case, a statement for which insufficient evidence was provided to the strike-out hearing to establish that it was true).
My public interest defence was separate from, and in addition to my other defences, which were that my statements were true and that they were statements of honest opinion.
The judge at the strike-out hearing, Mrs Justice Collins Rice, struck out my truth defence on the grounds that I was unable to provide a tweet by Rachel Riley declaring that she was a bully and that she published the tweets mentioned in my article in order to cause a teenage girl with mental health issues to suffer an enormous amount of abuse.
She then struck out my honest opinion defence on the grounds that I could not have an honest opinion about statements that were not true.
Her finishing touch was to strike out my public interest defence on the basis of a false submission by Rachel Riley that it must fail as a consequence of the truth defence being struck out.
Here’s what Riley said, in paragraph 71 of her strike-out application:
“71. Similarly the defence brought under s.4 DEA 2013 cannot have been reasonably believed if the facts relied on in the truth defence are incapable of supporting a plea of truth.”
This was a clear error of law.
Riley’s counsel accepted in oral submissions (that’s during the strike-out hearing itself) that this statement was wrong.
Riley’s case concerning my public interest defence was otherwise undeveloped and did not occupy the court’s time.
Nevertheless the judge, in her judgment, seemed to have swallowed Riley’s submissions whole and did not address any of the requirements of the defence.
She did not address the contents of my actual pleading (what I said).
In fact, she showed no evidence that she had given my public interest defence any due consideration at all.
Not only that, but the conditions in which my truth defence was judged – which had been laid down by a different judge, Mr Justice Nicklin – had nothing to do with the public interest defence.
Mrs Justice Collins Rice appeared – although we cannot be sure because her judgment was so vague that she did not even provide the reasons on which it was made – to have proceeded on the assumption that “the statement complained of” in a public interest defence against the allegations against me was the same as the single meaning of the words complained of, as found by Mr Justice Nicklin. Not true; “the statement complained of” refers to the actual words that I published. There’s a difference!
And, by the way, I pointed out that there was a difference, through my own representative, at the strike-out hearing. She couldn’t even say she hadn’t been told.
If she had considered my defence as pleaded – as she was bound by law to do – it would have been readily apparent that she had no power to strike it out, because it is unsuitable for such an action. “The court must have regard to all the circumstances of the case” – so it is impossible to determine whether it was reasonable for me to believe that publishing my article was in the public interest without hearing any actual evidence from me.
I’ll come back to this, because there’s an assumption here that my article is dishonest – and I take the greatest offence to anyone – High Court judge or whoever – bandying about such a claim without even showing any evidence for it.
Furthermore, the public interest defence is a developing area of the law. Mr Justice Nicklin (remember him?) said, “In an area of law which is developing, and where its boundaries are drawn incrementally on the basis of decided cases, it is not normally appropriate summarily to dispose of the claim or defence.
“In such areas, development of the law should proceed on the basis of actual facts found at trial and not on the basis of hypothetical facts assumed to be true on an application to strike out.”
Are we clear, so far? The strike-out application did not provide any admissible grounds for my public interest defence to be struck out, and the judge made an error in law by doing it.
So, in her response to my appeal, Riley put forward a completely new case that was longer than the whole of her previous application to strike out all of my defences. Not allowed!
So in my appeal, I submitted that Riley should not be permitted to advance her new case, on the following grounds:
Whilst a respondent may provide “reasons different from or additional to those given by the lower court” it does not extend to mounting an entirely new case, unheralded in that lower court. It is confined to “reasons” which were open to the lower court, but which it did not rely on. In order for these reasons to have been open to the lower court, they had to have formed part of the respondent’s case. And these hadn’t.
It was incumbent on Riley to bring forward the entirety of her case in her original application. As a matter of procedural fairness it is objectionable for her to withhold the entirety of her application until my appeal.
This was addressed in the appeal hearing when my Counsel pointed out that the proper place for Riley to bring forward her new arguments was the High Court, and in not doing so, she had deprived me of the opportunity to consider and respond to them there – putting me (and contributors to my CrowdJustice fund) to the extra expense of an appeal court hearing that could otherwise have been prevented.
My public interest defence cannot be determined in the absence of my evidence as to my belief that publishing the statement complained of was in the public interest. Concerning as it does my subjective belief, this is an in inherently fact-sensitive inquiry. In the absence of a clear case that the defence is bound to fail – which this is not – it is not amenable to summary determination (in other words, strike-out by a judge on the basis of barristers’ arguments rather than on the basis of evidence).
Possibly the most important point is that my appeal had to be on a “pure point of law”. By the same token, Riley should not be permitted to raise a new case in the Court of Appeal because it is not a “pure point of law”.
So, having failed to put forward a permissible argument in the High Court, Riley had no right to make an entirely new and separate case against me in the Court of Appeal.
That said, I still had to show that her new arguments were wrong, so let’s look at them.
She claimed that the statements I made were not on a matter of public interest because:
It discloses no grounds capable of giving rise to a reasonable belief by me that publishing the statement complained of was in the public interest. Further or alternatively:
The particulars of the defence are deficient such that the pleaded defence stands to be struck out as being likely to obstruct the fair disposal of proceedings.
I responded without prejudice as follows, to Riley’s new case:
My defence (the original document, written in early 2020) pleads four matters of public interest addressed in the Article:
- Online bullying and harassment including death threats; I highlighted the online bullying and harassment including death threats to which C has been exposed, as well as Rose.
- The power of an adult celebrity compared to the relative powerlessness of a vulnerable child suffering anxiety.
- Mental health; this point is connected with that of Riley’s power in comparison with that of her teenage victim, emphasising that the girl is a vulnerable person, quite apart from the fact that she was a child at the time of the events to which my article referred.
Riley’s contention is that none of the last three matters “is the focus or purpose of the article. None of these topics is examined in the article or forms any material part of it”. This is demonstrably wrong . Amazingly, she even made a general assertion to the effect that they aren’t even matters of public interest – although she did not provide overt arguments.
In respect of “Online bullying and harassment including death threats”, Riley does say that this is not a matter of public interest. This is a curious position for at least three reasons:
i) The article explains that Riley herself is the victim of such bullying, harassment and threats, as reported in a national newspaper. The first portion of the article is specifically concerned with The Guardian’s reportage and includes Riley’s own words.
ii) The article then sets up a counter-narrative by addressing the online bullying and harassment including death threats, suffered by the teenager. This remains a matter of public interest not least as it again concerns Riley, albeit as perpetrator, not victim.
iii) In terms of wider context, it is indisputable that online bullying and harassment is not just a matter of public interest, but pressing public interest – consider the recent Online Harms White Paper and Law Commission consultation on reform of communications offences (as I did, in my written submissions).
On the claim that I could not reasonably believe that my article was on matters of public interest, I had the following to say:
Riley was proceeding from a false premise – a limited selection of the tweets that formed the basis of my article. The full facts were not considered by the High Court. The judge excluded relevant tweets showing that the teenage victim was trying to retreat from the debate (and from the abuse she was receiving) – but Riley kept dragging her back to it, culminating in a thread on December 18 in which she said:
“I’m not finding Rachel Riley to be a nice person at all. I said I wanted to move on from this debate and end it, then she tweets me about retracting my comments after I said I stand by my opinion but will always listen to others.
“She said that she isn’t singling me out but all she has done has encouraged an onslaught onto me. I tried to be respectful and mature to her by saying I understood her stance but she’s just thrown it in my face.
“I may be sixteen but that doesn’t automatically make me an idiot. I will not sit here and let her dictate what I say and how I feel. I do not feel threatened by you, Rachel and I would have hoped you could have listened to everyone else’s opinions instead of just your own.”
According to Mrs Justice Collins Rice, the dialogue between Riley and this girl was entirely civilised and respectful until the teenage changed her attitude in January (nearly a month after this thread was published). The judge expressed the belief that other people had persuaded the girl to change her stance but this is clearly untrue.
No consideration is given to tweets by anybody other than Riley and her teenage victim.
In addition, the Twitter accounts of various third party followers of Riley’s, including their tweets, had since been deleted.
Riley does not challenge my belief in the public interest in publishing my article, whether in terms providing a counter-narrative to the Channel 4 News broadcast, The Times article, The Guardian article and her own widely-published tweets, or in highlighting perceived hypocrisy in her own treatment of the teenager or her record on anti-Semitism. These are not addressed.
These omissions are significant, as I will explain in his evidence at trial – should I ever get to provide it! I will demonstrate that:
a) The version of events presented in the mainstream media appeared incomplete. Riley was reported as being targeted by Labour supporters but the reportage did not detail how Riley had engaged with and attacked those same Labour supporters with whom she disagreed.
b) Primary sources in the form of the tweets of Riley, Tracy-Ann Oberman and the teenager were available and I checked them. Riley and Oberman are blue-tick Twitter celebrities whose tweets could be attributed to them (the blue tick on Twitter means the account is only used by the celebrity claiming ownership of it). I considered Rose’s tweets and the bullying narrative they conveyed (including those in which she specifically implicated Riley). I saw the abusive messages to which the girl had been subjected by Riley’s followers and noted the intensity and unpleasantness of the campaign waged against her and her father by Oberman, who had tagged Riley into her tweets. Oberman’s campaign coincided with Riley’s own tweets about Rose.
c) In my judgement this was a matter of public interest. It was not a minor Twitter spat. A child, who faced mental health challenges, reported being subject to online abuse culminating in death threats which had extended to attacks upon her parents. This was as a result of the conduct of adult celebrities whose power was wholly disproportionate to that of the child. The protections afforded to those adult celebrities were also disproportionate, Riley receiving extra security in her role as a television presenter whereas no protections were available to the child. There was a wider context to the hypocrisy alleged against Riley, given her record concerning anti-Semitism.
d) Riley’s story was prominent in national broadcast and print media and had been publicised on Twitter to her 600,000-plus followers. By contrast, the girl’s story had a much narrower audience. I sought to draw the public’s attention to both stories in parallel, highlighting a counter-narrative which in his judgement was of public interest.
e) I published urgently – at my earliest opportunity – in order to challenge the narrative in the mainstream media most recently conveyed in newspaper articles that morning. I am an experienced journalist. The decisions I made with regard to the article were in the exercise of my editorial judgement.
This is only a summary of the evidence I will give. But it serves to illustrate that my reasonable belief is unsuitable for summary determination by any judge in the absence of actually hearing my evidence.
Nevertheless, Riley squarely challenged the honesty of my belief that publishing the statement was in the public interest. To say, as my Counsel did, that “This is objectionable” is a devastating understatement. I take deep offence to unevidenced claims that I am a liar and of course no judge should ever support unevidenced claims made in a courtroom. Case law must be about facts, not fanciful tittle-tattle from the top of a TV game show girl’s head.
Put another way: “dishonesty must be specifically alleged and sufficiently particularised” and “The purpose of giving particulars is to allow the defendant to know the case he has to meet” – Sofer v Swissindependent Trustees SA  EWCA Civ 699 per Arnold LJ at paras 23(1) and 24(1). That’s your actual case law.
According to the Defamation Act, when considering a public interest defence, “the court must make such allowance for editorial judgement as it considers appropriate”. Riley did not address my editorial judgement as described in my defence. Instead, she simply asserted that “the article as a whole was not on a matter of public interest”. This assertion is untenable.
That is the gist of what I said in my written submissions to the court, and what Riley’s Counsel (and the judges, at times) tried to argue against.
When the judges announced they were retiring, after the evidence had been heard on Tuesday (April 27), I thought they were going to come out with a verdict straight away – that they had already made up their minds.
It was a huge surprise when they said they were reserving judgment and would submit it in written form in the future. On the day I tweeted that this may be because – as the public interest defence is a new area of law – they need to consider the possible repercussions of any decision in either direction.
As time stretches on, I don’t mind admitting that there have been discussions about whether the judges are trying to find an excuse for a verdict against me.
If that happens – well, you’ve seen the arguments. You can see that they are all on my side.
And it’s only a short hop to the Supreme Court.
Have YOU donated to my crowdfunding appeal, raising funds to fight false libel claims by TV celebrities who should know better? These court cases cost a lot of money so every penny will help ensure that wealth doesn’t beat justice.
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