Tortfeasor is a wonderful legal word. It means a person who commits a tort—that is a wrong actionable at law for which the victim can claim damages. There are many torts in English law, such as negligence and trespass, but the tort in the political and legal news this week is libel—the wrongful publication of a statement that damages another’s reputation. And what a fascinating and revealing political and legal news story it is.
The statement complained of was about the academic Kate Sang. The allegation was serious—possibly one of the most serious allegations that can be made, given current news events. The suggestion was that Sang had expressed support or sympathy for Hamas, which at law is a proscribed organisation. The allegation was that she supported terrorism.
The allegation was false. There was no evidence to support it. She had not expressed extreme views or supported a terrorist group. It was an allegation which should never have been made. But the allegation was published—and by a cabinet minister.
The allegation was made by Michelle Donelan, the secretary of state for science, innovation and technology. You may think it strange that a science minister, of all ministers, was publishing allegations for which there was no evidence. You may even find it odd that a secretary of state was even getting involved in this sort of thing.
Yet the minister did get involved—and she managed to do so in a way which meant her department felt it was exposed to legal liability. She published the allegation in a public manner that meant not only would she be a tortfeasor but so, it seems, would her entire government department. That was quite a feat.
The law of the United Kingdom provides many protections for government ministers—and other politicians—to speak their mind. They can say defamatory things with absolute immunity in parliament. And in formal correspondence a minister can often say defamatory things with legal privilege, as long as the recipient has an interest in receiving such frank views or adverse information, and that the statements are made without malice and in good faith.
In this case the secretary of state purported to have concerns about the professor, who had just been appointed to a board of the UK Research and Innovation agency, which Donelan’s department supervised. The concerns were, in turn, seemingly based on a dossier put together by a group of Westminster-based researchers and advisers. The minister proceeded to uncritically set out these concerns in a letter to the agency, though the concerns were asserted without repeating the context in the dossier.
Had that been it, then there may not have been any serious legal problem. Even if the concerns expressed were false and baseless, as long as the secretary of state sincerely held those concerns then she and her department should have been protected by what media lawyers call “qualified privilege”. The law provides there would be a common interest in the department and the agency being able to share such information, even if false and damaging.
Any defamed person in this situation would have to show bad faith or malice on the part of the department to bring an action, and those are quite high thresholds to meet. And this legal burden is on the victim, not on the department.
But that was not it. The secretary of state had the jolly idea of also publishing the letter openly on X to thousands of third parties. None of these third parties would have the common interest that the department and the agency would have. As such, the publication would have no protection at all from the law of qualified privilege. And because the assertions had also not been checked before publication, there would also be no public interest defence.
The professor instructed lawyers, and a letter before claim was sent. For some reason the government immediately treated it as a potential claim against the department, and not just against Donelan personally. The minister was represented by the government legal service and not any private firm.
This can be inferred from the statement released by the government yesterday: “This [settlement] was subject to all the usual cross-government processes and aims to reduce the overall costs to the taxpayer that could result from protracted legal action.” The “all” indicates that the government has dealt with the entire matter from the beginning, and not private lawyers, while the “overall costs to the taxpayer that could result” indicates that the government believed it was itself directly exposed to mounting liability and costs.
Yesterday Downing Street said that Donelan is “an excellent minister”. Views on that point may vary, but it would appear that she managed something pretty extraordinary in exposing her own government department to liability in a libel case for a social media post sent from her personal account.
The government could not and would not have accepted this potential liability lightly.
Rules on public expenditure mean the department would not have altruistically volunteered taxpayers’ money to help out the hapless minister. There was a problem here. Had Donelan only faced liability in her personal capacity then it may well have been treated as a personal matter. But something in the framing of the claim meant the government had to step in.
If the claim continued, the legal exposure to costs would simply get bigger until a trial, where on the known facts the government would be bound to lose. The department therefore faced a choice.
And so acting prudently, the department appears to have closed down the case at the earliest possibility by paying damages and costs to the professor, though without formally admitting liability. According to news reports, the department has had to pay at least £15,000 in costs and damages, and the secretary of state has published a retraction.
There are two obvious explanations for why the government felt it was directly on the libel hook.
The first is that, although the letter was posted from a personal account, officials viewed this publication to the public as being connected to her ministerial responsibilities. This would mean that the department would also be a tortfeasor for the post. Perhaps this was because Donelan’s personal account was badged as being that of the secretary of state (and it would seem there were not even any disclaimers, to the extent they would have made a difference).
The second is that the department was not altogether comfortable about the letter to the agency itself, even though that would normally be protected by qualified privilege. The department would certainly be responsible for that correspondence. If the litigation continued, the process by which the letter came about would have been examined. At some stage in the litigation, various internal emails and other materials would have to be disclosed, revealing just how the allegations ended up being in the letter and how that letter ended up being published on social media. If so, such disclosures may well have been awkward.
As for Sang, she sensibly only took the litigation as far as having this full public retraction, even if the word “sorry” was not published in the minister’s statement. She could have pressed on for a full apology and, in the circumstances, she probably would have received one. But she has been swiftly vindicated, and she is now free from the stress of litigation. And the news coverage of the retraction gives the impression that there has been an apology.
The combination of factors which led to the secretary of state visiting potential legal liability on her own department is remarkable. This was a special fact situation which meant the government felt it could not maintain any robust position. The claim was settled speedily, it seems, even before any claim was issued. The government was right to do so. Indeed, it probably had little choice.
But in another way, this was a misfortune waiting to happen. In the current frenzied information economy of Westminster and Whitehall—where ministers and special advisers, researchers and pressure groups, and time-poor and under-resourced news desks are constantly emailing, WhatsApping and DMing each other with allegations, assertions and lines-to-take—it was perhaps only a matter of time before something like this happened.
What was missing in this whole affair was the application of any critical thought. Indeed, the lack of due diligence by the minister before publishing the allegations robbed her department of any public interest defence. Had the allegations gone through lawyers before publication in a newspaper or on an official government site, then any problem may have been caught. But personal social media accounts do not have such gatekeepers, even though the legal liability can be just the same.
Ministers and their advisers need to be careful. There should be caution and not any rush to publish serious allegations by those with official positions. For there is another wonderful legal word—a word which covers legal wrongs that can only be committed by those holding public office. And that legal word is misfeasance.
