Rooney scores a final goal but should it be allowed?

The law of defamation has come under close scrutiny several times this year, with many judges in various jurisdictions questioning why they have been called upon to intervene in inconsequential private squabbles. No recent trial illustrates that problem more graphically than the English tabloid fever dream of Vardy v Rooney.

For more than two years, the long-simmering quarrel between two footballers’ wives has been played out in the English courts. During 2019, Colleen Rooney (wife of long-serving England player Wayne) realised that someone was leaking stories to the tabloid press from her private Instagram account, and resolved to identify the

culprit.

She did this by planting fake stories on the account, then reducing the number of people who had access to the account one by one. By October 2019, when an untrue Instagram post complaining of a flooded basement in the Rooney’s home made its way into The Sun, the only person still allowed access to the account was Rebekah Vardy (wife of Leicester striker Jamie). Rooney disclosed the results of her detective work in simultaneous posts on Twitter, Instagram and Facebook, announcing that she had identified the source of the leaks and “It’s….. Rebekah Vady’s account.” The Twitter post alone was viewed more than 30 million times proving, if nothing else, that too many people have way too much time on their hands.

Vardy, for reasons only she understands, sued. The case consumed millions of pounds in legal fees and the final hearing occupied seven long and unedifying days. Undoubtedly, the case was entertaining fodder for the same tabloid papers that published the original leaked stories. A central issue in the trial was whether Vardy had used her agent to pass on stories to journalists, but Vardy’s account of events was impossible to test, because a large number of WhatsApp messages had disappeared from her phone in mysterious circumstances, while her agent’s phone met with an even more dramatic fate, having been dropped into the North Sea. Mrs Justice Steyn produced a judgment that was remarkably sober in the circumstances, but still contained headings like “The Marriage Post”, “The Pyjamas Article”, “The Babysitter Enquiry” and “The Sting Operation Part I and the Gender Selection Post”.

Rooney defended herself primarily on the ground that her accusation was true, and that it had been Vardy who leaked her private information to The Sun. Mrs Justice Steyn agreed, finding that “the essential sting of the libel has been shown to be true.” Vardy’s claim was dismissed.

What the judge did not say, but might well have, was that the entire case was a regrettable way in which to use a scarce and expensive public resource – a week of the court’s time. Whatever may be the purpose that the law of defamation serves, it doesn’t seem to be this: providing a public forum for an inconsequential feud between two wealthy people on the fringe of the entertainment business. Cases like this one (and, arguably, the two cases between Amber Heard and Johnny Depp, which have chewed up court time on both sides of the Atlantic) raise the question of whether the law of defamation is ripe for a fundamental re-evaluation.

And yet, and yet. Fast on the heels of Vardy v Rooney came the jury’s verdicts in the Alex Jones case. Jones, who has developed a highly lucrative media career peddling conspiracy theories to a far-right audience, was sued in his home State of Texas by the parents of Jesse Lewis (who was six years old when he was killed during the Sandy Hook school shooting) and nine other families.

The uncontroversial facts are that, on 14 December 2012, a 20 year old man named Adam Lanza shot and killed 26 people at the Sandy Hook Elementary School in Connecticut. Within hours of the shooting, however, Jones used his cable television show to announce that no-one had died at Sandy Hook, which was a hoax fabricated by the government because “they want to take away our guns”. In later programs, he mocked the grieving parents, asserting that they were paid actors. When some of the parents sued for defamation, Jones failed to defend the substantive proceedings, and he was found liable by default. The only questions put to the jury last week were what amounts of damages Jones ought to pay, and the jury answered by ordering $4.1 million in compensatory damages and $45 million in punitive damages.

It’s unclear whether the families will ever see any of that money (Jones has already placed some of his companies into bankruptcy) but that, really, isn’t the point. The significance of the Jones case is that, unusually, a man who used the privilege of a broadcasting platform to tell reckless and deeply hurtful lies about highly vulnerable people has been held to account. And it was the law of defamation that enabled the Sandy Hook families to achieve that outcome. The Jones case suggests that perhaps the law of defamation retains a meaningful public purpose after all.