How do you read that headline? It seems to me that a court has made a specific order, possibly directed at Sally Bercow, and it has been established that she breached it. The "AGAIN" is there just to emphasise what a truly stupid woman she is: she just never learns.
Read the piece and you'll discover this was the latest "example of her Twitterrhoea" - yes, they are actually saying that liquid excrement comes out of her mouth on Twitter. Perhaps it's just me, but the description of her as "fiercely independent" of her husband, "defiant" and a "complicated woman" is quite telling as to what the author actually thinks her role should be in the marriage.
The story relates to two things: let's deal with them both.
1) Breaching a Section 39 Order under the Children and Young Persons Act 1933
This section states that the Court "may direct that no newspaper report of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings..."
The case we are talking about was widely reported in the press in September and October. There was an absolute media frenzy, with pictures, video footage and the girl's identity produced all over the place. The BBC reported last week that her teacher had appeared in court.
What this legal provision does is to try to protect the girl from future reports and stories that affect her getting her life back together. This is absolutely correct: the press used its power to help her be identified and eventually returned to the UK, and now it must butt out of her life. That's why the BBC story talks only of a "teenage girl".
It is of course an absurdity to pretend that if you wanted to, you could not find out the girl's name by a a quick search. There are of course literally hundreds of news articles that can be searched for from before the s39 Order that quickly reveal her name. Newspapers are not required to remove old stories: she must simply be protected going forward from the date of the Order. Once a tap is opened and water has poured out, you cannot put it back in the pipe. The aim here, again, is to stop unjustified future media intrusion.
There is some suggestion that in this case the specific court order went further than prohibiting new newspaper reports, and stated that the girl should not be named "by any media" [postscript, see below]. If so, Sally's tweet would presumably have been covered. How she, you or I was supposed to have knowledge of this is beyond me. Ignorance is of course no defence, but even as a lawyer looking at the statute itself, I cannot see any culpability. I would have to dig round case law to see how the provision has been interpreted or extended, and see this actual Court Order itself, in order for me to establish it.
Moreover, Sally did not name the girl: she simply gave her first name. It is not an uncommon name. If someone had been in a coma for 3 months, awoke, and read Sally's tweet they could not identify that particular child from that tweet.
If this Court Order does say what the press is now reporting, arguably just providing a link in a tweet to a national news story from September or October is enough for you or I to breach it. How far does it go? As my pal "@StiffPigeon" pointed out, if you leave out an old copy of the Daily Telegraph in a dentist's waiting room, could you have named the girl by the failure to clear the paper away, and face a £5000 fine?
I'm pretty sure the law would not be applied so idiotically, but no matter: Sally has already been charged (and found guilty) by the media. This is despite the fact there is no suggestion she is actually being pursued by the Police for her tweet that mentioned only the girl's first name in the context of an honest question.
2) Defamation Action Linking Lord McAlpine to a Paedophile Scandal
If reports are correct, Sally Bercow has received a letter before action because of a tweet that said “Why is Lord McAlpine trending *innocent face*”. It may have to be for a court to decide whether that is defamatory or not. All I can note is that she did not accuse Lord McAlpine of anything in that tweet. She was commenting on the fact his name was already trending because of the entirely inappropriate gossip and libel that was already circulating about him on Twitter.
I read *innocent face* as being ironic; other people may take it at face value - in which case there is no culpability and it's simply a question of fact and a statement that she does not know the answer. I personally think the tweet was foolish, and that the views she tweeted that Lord McAlpine's lawyers are "bullies" and "ambulance chasers" should have been kept private. If it does come to a defamation finding against her, these statements may adversely affect the level of damages awarded.
What I do not think she did, on any level, was engage in the malicious gossip and blatant defamation that many people on Twitter did. She was foolish: we are all foolish at times in our life and she has admitted that herself. She was, however, substantially less foolish than other people around this time on Twitter.
Bullying and Sexism
I like Sally Bercow's tweets. I do not always agree with them, but that applies to most people on Twitter. The whole point of the medium is for us to share views and discuss things.
What I have repeatedly seen in reporting of her is a poring over anything she tweets, unfair extremely personal criticism, and a narrative that frankly suggests she is a woman who should shut her mouth and know her place. She, like Louise Mensch, is an attractive, eloquent and woman who is not afraid to voice an opinion. There seems to be a level of sexism and bullying applied to them both which is unfair and wrong. This applies both to the way the press treats them and to a level of personal abuse applied to them both.
Sally Bercow's "latest gaffe" is not idiotic to me. It is not stupid, it is not spiteful, and it is something anyone could do. It is far from clear to me that she has actually breached a Court Order and it does not justify the Independent saying liquid shit comes out of her mouth or establishing in the Court of Media that she has done so. On the libel front, it is up to her lawyers and possibly a court to determine if she defamed Lord McAlpine with her "innocent face" tweet. Her case is far less clear cut (morally and legally) than thousands of others. She, however, is an easy target to go after.
I'm sure her lawyers' advice is prudent at the moment, but it is sad to have seen her tweet last night:
"Looking at tweets but (sadly) can't reply (#lawyerswhippedmyass #asdidMrB). So text/email/DM me if you're a mate. Hope 2 b back soon. xx."
I hope she, and other women tweeters who are routinely bullied because they are high-profile, is not hounded off Twitter and that this a temporary thing. There is also some suggestion that it could be the action of a hacker that has led to the deletion. She has 28 days to reactivate her account - I hope for her, for general freedom of speech, and for the presence of someone I regard as a kind, interesting and refreshingly honest person on my feed, that she does return.
You don't have to agree with my personal view of Sally, but I'd hope you see the point as it relates to others.
Postscript: I've been sent a link to this interesting High Court case by lawyer @ljanstis that was published yesterday.
In it Tugendhat J sets out that "The scope of s.39 was extended by the Children and Young Persons Act 1969, s.57(4) so that that section (and others) now "apply in relation to sound and television broadcasts as they apply in relation to newspapers". But there has been no extension of s.39 to apply to any other form of report, such as one made in the social media or the internet." The judge goes on to cast doubt on whether a S39 order could or should extend to such media and refuses to make an order on the basis of S39 in this case.
This in turns makes we wonder about the accuracy of the Sky News article that the specific S39 order did in fact encompass "all media". This, along with my concern about Sally having not actually having given the girl's full name, adds to the fact that press reporting of this issue was even more unfair.
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