Last week saw Premier League football club Aston Villa threaten the well-known pundit and former professional footballer Jamie Carragher with legal proceedings arising from comments he made concerning the club.
Background
Appearing on the popular Stick to Football podcast, Carragher gave his views on the prospect of Villa manager Unai Emery replacing the under pressure Michael Carrick at Manchester United. He commented that:
“Aston Villa will never be Man United”
“I’m not trying to annoy Villa fans but there is a chain in football, whether you like it or not.”
“So Real Madrid will take Man United’s best player, they’ll take Ronaldo. There’s very few above United, the same with Liverpool.”
“But there will be teams below Aston Villa and they will take their manager or they will take their players, so shut the f*** up Villa fans. Aston Villa will never be Man United.”
In response, Aston Villa’s Chairman Nassef Sawiris took the unusual step of taking to the club’s X account to post the following statement:
“Aston Villa will initiate legal action against Jamie Carragher for his unacceptable insults about the Club and its fans.
Aston Villa will not allow anyone to stop our ascension in English and European football.”
Whilst a subsequent apology made by Carragher for his “clumsy and wrong” language has seemingly averted the threatened legal action, the episode gives rise to some interesting issues as to the basis for that threat amid what could be thought to be a dangerous precedent for punditry, both in relation to football and further afield.
In so far as Villa’s concern regarding Carragher’s comments seems to be reputational, the primary basis by which it could look to enforce its rights would be the tort of defamation. It is far from clear, however, that any such action would have had any real prospects of success.
Basis of a Defamation Complaint
The law of defamation provides that a statement will be actionable first where it is defamatory at common law by reference to the inherent tendency of the words to cause reputational harm and provided that the allegation made is sufficiently serious. This was encapsulated by Warby LJ in Millett v Corbyn as follows:
“At common law, a meaning is defamatory and therefore actionable if it satisfies two requirements. The first, known as ‘the consensus requirement’, is that the meaning must be one that ‘tends to lower the claimant in the estimation of right-thinking people generally.’ The judge has to determine ‘whether the behaviour or views that the offending statement attributes to a claimant are contrary to common, shared values of our society’. The second requirement is known as the ‘threshold of seriousness’. To be defamatory, the imputation must be one that would tend to have a ‘substantially adverse effect’ on the way that people would treat the claimant.”
In the context of companies, such as Aston Villa, an action may lie for defamation under the common law in respect of defamatory statements which impact upon its business or trading reputation, such as those impugning the fairness or honesty of its business methods or which otherwise reflect negatively on the efficiency or financial position of the company.
It is, however, the case that insults, ‘vulgar abuse’, or statements which merely lead to hurt feelings or annoyance are not actionable as defamation. Likewise, in cases of relative reputation, and leaving aside the inherent tendency of such statements to be expressions of opinion, the Courts have repeatedly held that comparisons between parties are not defamatory.
Accordingly, Aston Villa would likely have real difficulties in establishing that Carragher’s comments were defamatory of the club at common law in getting any claim off the ground.
Even if they were able to do so, however, it is nonetheless the case that they would further have to satisfy the statutory requirement that the comments made had caused or were likely to cause serious harm to the reputation of the club pursuant to s1(1) of the Defamation Act 2013.
Given the tribal nature of football fandom and discourse, as well as the fact that Carragher’s comments were expressions of opinion which may therefore be treated as lacking the requisite capacity to cause serious harm to reputation, this would likely be difficult to establish.
As a body trading for profit, the club would further need to demonstrate that Carragher’s words had caused or were likely to cause serious financial loss for the purposes of s1(2) of the Act. What constitutes a serious financial loss in this regard is a relative concept but, on the basis that Aston Villa’s turnover in its most recent public accounts exceeded £359m, it is clear that there would need to be evidence of a significant loss in this regard attributable to Carragher’s comments. Given the nature of his comments, it is difficult to see how this could be the case.
Honest Opinion
In view of the above, it does not appear that any claim threatened by Aston Villa in defamation would disclose the essential components of the cause of action, either at common law or pursuant to s1 of the Defamation Act 2013.
It is however nonetheless the case that Carragher would likely be able to avail himself of a complete defence of Honest Opinion under s3 of the Defamation Act 2013, the relevant provisions of which are as follows and would appear met:
(1) It is a defence to an action for defamation for the defendant to show that the following conditions are met.
(2) The first condition is that the statement complained of was a statement of opinion.
(3) The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.
(4) The third condition is that an honest person could have held the opinion on the basis of—
(a) any fact which existed at the time the statement complained of was published;
(b) anything asserted to be a fact in a privileged statement published before the statement complained of.
Whilst the defence is defeated under subsection (5) where the claimant shows that the defendant did not hold the opinion, absent any admission, this will usually be difficult to establish. The opinion need not be justified, fair or reasonable; the Court of Appeal has rejected the notion that an opinion being objectively unreasonable means that the Defendant did not believe it. There appears no reason to think that Carragher did not hold the opinion expressed, which many may consider was entirely justified, fair and reasonable in any event.
Comment
While it may have been a pragmatic response for Carragher to apologise for his comments, which he anyway limited to his “clumsy and wrong language”, it is difficult to see that the apology was warranted by reference to any threatened claim in defamation. Any cause of action in this regard would appear to have been unsustainable and the threat has been interpreted in some quarters as more symbolic than serious. Nonetheless, the episode will no doubt give rise to some concerns as to a potential for clubs to seek to silence perceived criticism to which they object. Given the levels of wealth awash in the game, this inevitably has the potential to give rise to disputes where there is a huge inequality of arms between the clubs and the pundits commenting upon them, for whom any threat can then make life very uncomfortable, notwithstanding their own status in the game.
How Taylor Hampton can help
Taylor Hampton has extensive experience in defamation and sports law, acting for both claimants and those facing threatened proceedings. If you have received a legal threat in relation to published comments, or believe you have been defamed, please contact us on 0207 427 5970 or at enquiries@taylorhampton.co.uk.
Disclaimer: This article provides general guidance only and does not constitute legal advice. Civil procedure rules and case law can change. Always seek professional legal advice tailored to your specific situation before acting.