Amunwa: Make friends with defamation lawyers
The growing ranks of legal bloggers commenting on often sensitive court rulings have been given comfort after a libel claim brought against a barrister who wrote about one on his personal website was struck out.
Ben Amunwa was sued by a lecturer over a blog he wrote on a successful appeal the lecturer had brought in a disciplinary case.
Mr Amunwa warned that “lawyers on social media are more exposed to claims like this than ever before” but said the ruling of Mr Justice Warby strengthened their position.
The barrister practises at The 36 Group – which includes 36 Bedford Row chambers – and has a personal website lawmostly.com [1].
He was sued by Tariq Alsaifi, who had been a lecturer in accountancy and finance at Newcastle College but resigned ahead of his likely dismissal over allegations of inappropriate behaviour towards a 17-year-old student.
Following this, a panel of the teaching regulator, the National College for Teaching and Leadership (NCTL), recommended that Mr Alsaifi be prohibited indefinitely from teaching, an order then made by the secretary of state.
However, last year, in Alsaifi v Secretary of State for Education [2016] EWHC 1519 (Admin) [2], Mrs Justice Andrews set aside the prohibition order on the basis that the NCTL did not have the power to carry out the investigation, and so the secretary of state could not make the order.
This was because Mr Alsaifi, as a lecturer in a further education college, was not a ‘teacher’ for the purposes of section 141 of the Education Act 2002, nor was the student a ‘pupil’, as she was doing part-time education in a further education setting and was older than 16.
Six weeks later, Mr Amunwa wrote about the ruling on his website under the headline, ‘Teacher’s regulator acted outside its power in unlawful prosecutions’. In it, he went into some detail about the allegations against Mr Alsaifi, and ultimately commented on what he considered a gap in the law highlighted by the decision.
In Alsaifi v Amunwa [2017] EWHC 1443 (QB) [3], Warby J found that the words complained of were “clearly capable of defaming Mr Alsaifi”.
But he continued: “However, it is quite clear to me that the court would inevitably conclude that the passages in the article which could convey such meanings constituted a fair and accurate report of the appeal judgment.
“In my judgment, the report was not, or at least arguably not, ‘contemporaneous’ for the purposes of the relevant statutory provision. It is therefore at best doubtful that this part of the article would attract absolute privilege.
“But in my judgment, the statutory defence of qualified privilege for fair and accurate court reports that are not contemporaneous would inevitably be upheld in respect of this part of the article, and Mr Alsaifi has no real prospect of establishing malice so as to defeat that defence.”
The remainder of the article, Warby J said, was neither defamatory nor capable of defaming Mr Alsaifi.
“If and to the extent that is wrong, then as Mr Alsaifi himself put it in his original statement of case, the article ‘comments on’ the appeal judgment.
“Any comment that implicitly defames Mr Alsaifi would inevitably be held to amount to honest opinion under section 3 of the Defamation Act 2013. Mr Alsaifi has no prospect of proving that the opinion was not held.”
Mr Amunwa told Legal Futures that he welcomed the judgment. “Vibrant blogs make for a healthy legal sector. It is crucial that bloggers are free to comment on controversial cases, as long as the information they provide is accurate and fair.
“This judgment strengthens those protections and deploys the rarely used tool of summary disposal under the 1996 Defamation Act.
“It was not always pleasant being sued. Lawyers on social media are more exposed to claims like this than ever before.
“My advice is to make friends with defamation lawyers. I was lucky to have a cracking defence team (Ronald Fletcher Baker). Without them, I would have been clueless.
“If you are summarising a judgment, it can help if you refer to the paragraphs you are relying on. This is good discipline (both on and offline) and may assist in the event of a dispute. It is a habit of mine that appears to have made a difference in this case.”