Witness his article on libel reform, published on his website last year in the wake of the second reading of the Defamation Bill in Parliament. Barton’s thesis, as far as it goes (it’s longer than 140 characters, but not by much), was that while our present laws were ‘draconian’ and vigorous debate ought to be encouraged, there was a necessary line in society where freedom of expression might overstep the mark. Barton, as a recent and spectacular convert to Twitter, was particularly interested in the application of law to social media. He was confident that the democratisation of journalism through instant blogging provided a ‘right of reply’ for the moral majority which could act in concert with new, softer libel laws to help police online abuse.
However, the fearsome tackler was equally concerned that those who misused the technology should be held responsible. He welcomed the Bill’s proposals to help claimants and victims of hate crime enforce their rights against abusive users, acknowledging the
‘need for some degree of fair play … since anyone can abuse and harass online’. He concluded: ‘it’s important that those few individuals sitting cowardly behind a screen sending slanderous, racist and sometimes threatening remarks should have to deal with the consequences of their actions.’
So it is that this soi-disant man of contradictions finds himself once more answerable to his own convictions. This week he engaged in a (largely unilateral) war of words with a player from a rival club, whom he took to Twitter to abuse – notably making use of the phrase “a [sic] overweight ladyboy”. This resulted in steps from that club, the super-rich Paris Saint Germain, which no doubt Barton would consider ‘draconian’. He has used his blog to take to task “large corporations” who use libel laws to gag free speech, and the Paris club – owned by the Qatar Investment Authority – would no doubt qualify.
Of course, Barton was referring to the UK legal position. In France, the libel procedure is far quicker and cheaper – which may come as a relief to the on-loan midfielder, who in line with many commentators has branded such litigation “costly and wasteful” in the UK. However, the ‘fast track’ system in France also brings potentially swift findings in the claimant’s favour.
It is not clear whether it was a claim under the droit de diffamation PSG and their player Thiago Silva had in mind when they reserved the right to take ‘any action they deem necessary’. The statement added: “These attacks are serious and go beyond mere verbal jousting” (in the UK that might correlate to vulgar abuse or ‘saloon bar moaning’; French sports journal L’Equipe asked, on their front page, if this was “L’Humour British”). Whilst Barton’s coach at Marseille would only remark – in line with the Englishman’s own views – that “the communication of individual players is their own responsibility”, plainly the club are neither willing to go toe-to-toe with the deeper-pocketed Parisians, nor to match them in their unflinching support for their own player.
Marseille have now issued an unreserved apology and withdrawal on behalf of Barton (who has himself remained uncharacteristically silent) and taken appropriate disciplinary measures internally, including a gag on their player (who has ‘pledged to desist’). Barton’s team-mates have previously suggested Barton’s more risqué remarks – in this case likening the Brazilian superstar Neymar to ‘cat piss’ – were perhaps lost in translation, lodged in a ‘language barrier’ somewhere near the Eurostar check-in at Dover.
Alas, even as a native English speaker, it is hard to get around the ordinary and natural meaning of the words – the outbursts in question rarely invite an inoffensive interpretation.
Assuming for a moment Silva were to bring a personal action in libel, I can only comment on the UK position and speculate whether Barton’s description of his rival as an “overweight ladyboy” would meet the test of defamation on these shores. There was certainly extensive publication in the UK, given the majority of Barton’s followers – and the Brazilian international Silva may be said to enjoy a reputation here (having inter alia played in London for AC Milan against Arsenal in March 2012).
Sexuality was once considered a suitable basis for a claim in defamation – albeit that Jason Donovan’s successful 1992 claim against The Face was more rooted in fan deception. It is doubtful the same result would reoccur in 2013, although transexualism is an untested subject and (if concealed) may be argued a more fundamental deception. Consider the case of the South African runner Caster Semenya, and the implications for a sportsperson where gender classifications may be strictly enforced.
Silva might also rely on the likelihood of such a person being ‘shunned or avoided’, particularly in his home country – but the UK Court would need to consider the view of a right-minded member of our own society. In any event a claim on this count would surely fail in the UK under the test of the words’ actual meaning: while the intention of comedy is not a defence, it would be hard to argue that most readers would read the statement to mean anything other than that Silva looked like a transsexual (rather than that he was). Indeed, ‘looks like’ was part of the tweet and the court would be obliged to consider the whole, despite how the majority of headlines have singled out the phrase (Charleston v News Group (1995)). All the same, it would be interesting to see Barton seek to run a fair comment defence on this point.
It must be said, Barton did little to help his cause by labouring the point. The way he stuck at the topic, he might almost have had people thinking it was credible gossip: “Are you Pre-Op or Post-Op? #transsexual #thiagosaladyboy …. “Baffles me, which way he’s going. Is he a man changing to a woman or a woman changing to a man? Can’t work it out.”
Perhaps a more workable defamatory meaning could be constructed around ‘overweight’, in appearance or fact. More than simply ‘fat’, it goes to Silva’s professional ethos – arguably far more than the question of Steven Berkoff’s physical appearance did as an actor, in the infamous split Court of Appeal decision in Berkoff v Burchill (1996). A pleaded meaning that Silva was unprofessional, and had a poor attitude to training and lifestyle (even disregarding Barton’s more fanciful notions about how Silva spends his nights), may be supportable and would prima facie be defamatory.
That is especially so combined with Barton’s other observations as to Silva’s fitness and ability (‘another overrated Brazilian… That the same prick thats been injured all season. … Sort your hamstrings out FatBoy’). Barton did seem to withdraw these as part of the same infamous ‘ladyboy’ tweet (‘Have to take back what I said about Thiago Silva being over rated today. Been immense tonight.’). He might even rely on the fact as an off-the-cuff offer of amends.
Finally, and perhaps a little more seriously, there is the question of harassment and hate speech. The persistent targeting of Silva might have constituted harassment if it had continued, despite objections. There was also at least an arguable racial element in Barton’s singling out Brazilians; perhaps even in his broad generalisations about what a so-called ‘ladyboy’ might look like, albeit that Brazil is continents apart from Thailand. That is not to suggest Barton himself harbours any racist views (understandably one of the most toxic accusations in football): but still, it is hard to imagine the throwaway remark made about a player of ‘European’ complexion.
In any event, using such a term as a comic handle for a trans-gender person is undoubtedly offensive; in the context of ridicule, it may be argued to incite hatred on grounds of sexual orientation, though the test for this is likely to be a little high (s.74 Criminal Justice Act 2008 as amended) (and in any event the categorisation of transgender issues as a matter of orientation is the subject of debate).
Ignoring the joyous intricacies that any libel or harassment claims brought by Silva might represent, we would suggest, in the context of a potential claim or action from a club, a complaint to the FFF (French Football Federation) – or in the UK, the tried and tested charge of ‘bringing the game into disrepute’ – might represent a more sensible course (indeed, this seems now to have occurred). Courts across the EU tend to step back when something can be dealt with by an internal sports tribunal (though with astronomical wages at risk, expensive lawyers will usually follow in any event).
All in all, Barton’s reputation in some quarters as a surprisingly cerebral wordsmith is put under constant scrutiny by his own Twitter output. It might even be said that, when the media singles out Barton as a paragon of thoughtfulness and articulacy amongst his peers, they make a broadly discriminatory judgment on footballers as a section of society.
Owen O’Rorke is an Associate at M Law LLP
This post was originally published on the M Law LLP website and is reproduced with permission and thanks