Comment on Podcast Episode 2 – Stuart Cosgrove by canuckbhoy.
Fortunately for Mr. Wallace there’s an easy corporate remedy that can solve all this unfortunate confusion (and refute Timmy misinformation) over the state of “the club’s” finances. It’ll further avoid the need for drafting another lengthy statement that takes time away from the important work of the remaining weeks of the 120-day review.
Publish interim accounts, sir.
It’s almost like there’s a reason listed companies do that on a regular basis…
douglas reynholm 29th January 2016 at 8:10 pm #
Got to be Honest, not sure what to make of the Herald’s actions.Firstly, I believe a Rangers Director did make that comment to Graham Spiers however I’ve got a feeling the email exchange between them probably contains a denial from Rangers….even they ain’t dumb enough to put that in writing. So with out any evidence, where does that leave the Herald legally?It’s an honest question. would he have likely lost in court…does the fact he mentions an un-named Rangers director give any legal leeway in this? I know there are other more sinister factors at play here but is this one in itself a showstopper?It wouldn’t be the first time a newspaper has had to issue an apology to a company.
Douglas, I’ve been doing some reading, and am not an expert, but I can understand why the Herald would feel exposed if Spiers doesn’t have documentary proof, corroboration from someone else privy to the conversation, or didn’t get consent for publication.
Big caveat here: defamation is a complicated area of law. Also, don’t take this as legal advice!
First, this suggests that defamation in Scotland is pretty close to common law defamation: http://www.brodies.com/node/4120. Wikipedia says that the only difference is that there is no distinction made between libel and slander, and that the defense of truth has a different name.
The traditional elements of common law defamation are: 1) defamation (yes, defamation is an element of defamation; I don’t make up the rules!); 2) identification; and 3) publication.
We can take #3 off the table right away. The actual threshold is very low — basically, communication to a third party, even if unintentional — and in this case we’re talking about a newspaper column.
The test for #1 is expressed in about 10 different ways, but from the Brodies piece is representative: a communication that “lowers a person in the estimation of a right-thinking member of the public.” This would actually be an interesting issue, depending on how the action is framed. If attributing “Billy Boys was ‘a great song'” to the unnamed director is alleged to be the defamatory statement then you’d have the spectacle of Rangers (or the director, see below) having to establish in court, as part of their case, that endorsement of the song is likely to “lower a person in the estimation of a right-thinking member of the public.” On the one hand, I think we’d all agree that it does. On the other hand, that’s not a position that is likely to be popular with the people most happy today. If the defamation is instead alleged to be Spiers’s questioning of the commitment of Rangers, the corporate entity, to combating sectarian singing, it could open an alternate defense to Spiers.
#2 would also be interesting. First, who brings the action? Rangers, the individual unnamed director, or the directors as a group? Each one has different implications. Second, it is very much possible to defame someone without naming them. The smallness of the group would be a factor here but it’s not automatic. I wouldn’t want to venture an opinion on the outcome because I think that this is very close to the border. It would almost certainly be a legal issue at trial. Alternately, as mentioned, Rangers could claim to be the party defamed. They are certainly identified in the piece and, ultimately, the alleged quote is used as evidence for Spiers’s larger point. Keep in mind, an opinion can be defamatory, but it allows a different defense.
The most important point is this: truth (veritas in Scotland, apparently) operates as a defense. Thus, if the plaintiff proves the three elements above, the burden would then be on Spiers (or the Herald) to prove the truth of the alleged statement. If it comes down to a question of testimony between the parties to the conversation, and they are equally believable, then the defendant would have failed to satisfy the onus placed on them. Put it this way: tie goes to the plaintiff. That’s part of why newspapers check quotes before publication, unless the conversation was recorded. This is probably why the Herald is backing down or, as I first observed, feels legally exposed.
Alternately, if the defamation is alleged to be Spiers’s opinion about Rangers’ willingness to combat sectarian singing, then he’d probably have a defense of fair comment open. Fair comment is even more complicated. The big problem, from my understanding, is that the opinion has to be based on a “true fact”. So we might be back to the question of proving the statement. I’m in no way sure about that, however, as it may be open to Spiers to lead other evidence as the basis for his opinion. I doubt he’d have much trouble making out the “honest opinion” and “public interest” components of the defense.
The bigger point though, is that the Herald has really, really botched this on multiple levels. The unattributed comment probably shouldn’t have gotten past editorial in the first place. But once they decided to run it, without getting confirmation, they look even more ridiculous backing away from it. If they had come out with a “we believe and back our journalist” the ball would entirely be in Rangers’ court and everyone would be on the Herald’s side. Even if a suit was launched, you’d have the spectacle of Rangers, or one or some of their directors, publicly arguing that being associated with The Billy Boys is defamatory. And the potential for them to have to testify as such. That alone should have been worth it for the Herald.
And, while damages are presumed in defamation, I’m not sure they’d be particularly onerous even if the Herald couldn’t successfully make out the defense. How much was the reputation of Rangers hurt by an alleged tacit endorsement of a song their fans are well known to sing? I could totally imagine fairly nominal damages being all that were awarded.
Worst, Spiers has doubled down on the truth of his original column. So if he’s not sued, what does that say about the Herald’s decision?
John Clark Meets “The SFA”
Another interesting angle is how disastrously poor of a tactical decision this has ended up for Rangers and their Board. From a passing comment in a column that would have been forgotten in months, if even noticed at all, now they have effectively signal boosted the comment they originally objected to. People well outside the Scottish football bubble are aware of it. And Spiers is standing by his reporting, effectively daring them to sue.
All just to give the “taking the fight to our enemies” crowd happy. The same crowd who would be most disappointed if the Board publicly and emphatically distanced themselves from any endorsement of the song in question.
John Clark Meets “The SFA”
Haven’t had a chance to get fully caught up, as the news is moving so quickly, but one thing I think should be noted on what is another historic day in this saga:
This is very likely the end of any deference towards members of the “new” regime based on a presumption of common decency.
Charles Green cynically played to the mob to manipulate them for his own ends. The new regime is the mob.
Why We Need to Change
Member: (1 comments)
July 10, 2015 at 10:27 pm
LNS and the others perhaps could have come up with your interpretation themselves, but it’s probably unfair to criticise them for not adopting an interpretation which was never argued by “the prosecution.”
It’s probably also worth noting that if there was ambiguity in the interpretation of D1.13 on this issue, the panel would likely have been bound to construe it in the most favourable way for Rangers under the contra proferentem principle.
Excellent post (and I enthusiastically thumbs-up it)!
But it’s also worth pointing out that the principle of contra proferentem would only apply where there is “true ambiguity” (or some other such language). You can’t just read ambiguity into a statutue (or contract, among other things) because it’s advantageous.
Registration and eligibility are fairly distinct concepts. As HP has already pointed out, it is very easy to present a scenario where a player is registered, but nonetheless not eligible to play in a particular competition or individual match. Contra proferentem is a principle, but so is the principle that drafters specifically use different words in different place to mean different things, and that they should not be read as synonymous when there is a more natural, contextually appropriate interpretation.
Why We Need to Change
Yes, changing results ex post facto when the “establishment club” is found to have been cheating on an industrial scale is completely unprecedented.