Britain’s Got Damages? – Cowell takes legal action over “malicious” blog in “fix” claims

Simon Cowell is never far away from the Headlines, especially after rumours of a falling-out with Cheryl Cole that may have led to her being dropped from the Judging Panel on the US version of the X Factor, the announcement of the UK version’s own new judging panel and the airing of the live finals of “Britain’s Got Talent”.

Every year, many of Cowell’s shows come under attack for apparent bias towards certain contestants but this series of Britain’s Got Talent has been hit with a more serious allegation – that the “angelic” 12-year old singer Ronan Parke has been under contract to Cowell’s management company Syco for two years and that the outcome of the show has been “rigged” for him to win after he was “restyled” for the public audience.

The allegations came in an anonymous blog allegedly written by an executive at Sony Records, which has already been read by over a million web users that has been described as part of an organised “hate campaign” to derail Parke’s chances of winning tonight’s live final of the show. The blog went on to claim that Parke was “discovered” at a birthday party in 2009, but that nerves kept him from appearing in the 2009  or 2010 series.

Sony’s reaction has been unequivocal. They intend to “take legal action” against whoever is responsible for the blog and have reported it to the Metropolitan Police in the hope that they take steps to prosecute the culprit for an offence of “malicious communications”. Unsurprisingly, Sony have denied any truth to the rumour, which has spread like wildfire over Twitter.

So, after a month where we’ve seen superinjunctions broken over Twitter, user details handed over to potential claimants and a general outcry over the attempts of the rich and powerful to stamp out negative commentary on social networks, are we likely to see the Britain’s Got Talent “Mole” outed or prosecuted any time soon?

The offence of sending a “malicious communication” comes from Section 1 of the Malicious Communications Act 1988, which states that “anyone who sends to another person a message which is indecent, grossly offensive, a threat, which contains information which is false (or believed to be false) by the sender or is in some way “indecent or grossly offensive” and which is intended to cause distress or anxiety to the recipient is punishable by a fine or a six month custodial sentence.

Serious stuff – the 1988 Act was intended to cover poison pen letters  along with, writing of all descriptions, electronic communications, photographs and other images in a material form, tape recordings, films and video recordings. It certainly covers a blog post. – what’s “grossly offensive” in this case will be decided on the basis of its usual ordinary meaning.

This case raises similar issues to the infamous “Twitter Joke Trial” which saw Paul Chambers prosecuted for a similar offence under Section 127 (1)of the Communications Act 2003 after a tweet which “jokingly” described his plans to blow up an airport. Chambers’ was convicted for the offence of  “misus(ing) a public electronic communications system to send a message  which was grossly offensive or of an indecent, obscene or menacing character.” The blog in question may not fit this criteria, but some of the tweets which followed it may.

Section 127 (2) contains an offence which may be more suited to the Parkes case, at least as far as the contents of the Blog are concerned: sending by means of a public electronic communications network, a message that he knows to be false or persistently making use of a public electronic communications network for the purpose of causing anyone annoyance, inconvenience or needless anxiety.”  It carries the same punishment as the Malicious Communications Act 1988 Offence and the 2003 Act has already been used to bring Paul Chambers at least to book, but this section is a “catch all” to see up virtually any objectionable content on social networks.

So, what’s the point? As I’ve said a thousand times before – what you say online is every bit as punishable as what you say offline. If one criminal offence can’t get you then another one may. Not only that but what you say online can be downloaded and held against you as well as used in evidence which is easy for a Judge to read. Simply put, there’s no such thing as a Tweet without consequence. It’s doubtful that we’ll see a conviction of the Blogger here and if you were particularly cynical you could see this entire exercise as yet another PR stunt from the Cowell machine. That doesn’t, of course, take into account Parkes’ feelings but it won’t stop commentators from reaching that conclusion. As it turns out, some of the comments made about Parke have been homophobic and beyond abusive, so no amount of cynicism can excuse them.

Of course, there’s nothing to stop Cowell and Sony taking civil proceedings in relation to the “fix” allegations or claims that they “sexualised” Parjke to broaden his appeal if they can find out out who’s behind the blog. They’d need to go to the website or host on which it was based and obtain an order to release their details (as CTB has recently tried to and South Tyneside Council successfully have done in relation to Twitter) and then sue for defamation on the basis that his comments lower the reputation of Cowell/Sony in the eyes of the man in the street and have damaged public confidence in the competition being decided fairly.  It’s hard to see how they wouldn’t win as some of the claims may be almost impossible to defend, but there’s no guarantee that the person behind the blog could pay costs or damages even if they lost the libel case. If there is any truth to some of the allegations, the Blogger may have a defence which covers them in either justification or qualified privilege. Even then, the more serious and less defensible allegations would cancel those defences out  – the more serious the allegation, the higher the award in damages. 

Much ado about nothing? I suppose that depends on your point of view. It may well be in Cowell’s interest to pursue the Blogger to prove a point and restore a reputation that is taking something of a beating over the past few days by “sticking” up for the little guy. Some of the Tweets which have followed the blog are completely inexcusable and it may be time to show some of the more cowardly Tweeps involved that this kind of abuse simply won’t be tolerated online or anywhere else – those who comment on the blog and take the allegations further may end up in far more trouble then the writer.

If you ask them later whether or not tweeting the allegations or making them in the first place was a good idea, they may be forced to say “no”. Four times.

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