‘Wagatha Christie’ puts England’s legal system on trial in the social media age | Defamation law

Anarba Groub

The “Wagatha Christie” libel trial opened with a cry of despair from Coleen Rooney’s barrister: “This whole court might just think: why on Earth are we here?”

After almost two weeks of court hearings, it was a question that many of those who took part or watched – including Rebekah Vardy, Coleen Rooney, two former England footballers, dozens of journalists, and the judge, Mrs Justice Steyn – might have asked themselves at some point. (In reality, the lawyers involved may have been content to be there, knowing they are set to share hundreds of thousands of pounds in fees.)

A post on Coleen Rooney’s private instagram account, referred to in court as the “Pyjama post”, which was later allegedly described in an article in the Sun.
A post on Coleen Rooney’s private instagram account, referred to in court as the “Pyjama post”, which was later allegedly described in an article in the Sun.

But how did Rooney’s 2019 social media post alleging “Rebekah Vardy’s account” was leaking stories from a private Instagram account to the Sun spiral into this legal media circus?

The simple answer, according to Rooney’s lawyer David Sherborne, is that Vardy decided to press on and bring her multimillion-pound libel claim against Rooney to court no matter what, declining offers of a mediated outcome in a bid to clear her name and restore her reputation.

The more problematic answer is that the case exposed how – 15 years after social media went mainstream – English libel law is still struggling to deal with a world in which everyone is a publisher.

This is a universe where unmediated idle chat on video streams reaches millions of people, where celebrities’ Instagram accounts have more readers than some national newspapers, and where some of the greatest legal minds of the country spend time debating the 😂 emoji.

The trial showed that how we communicate as a society – and in turn make potentially defamatory accusations – has changed for good. Whether the legal system can cope with this is another matter.

On the final day of the trial, Hugh Tomlinson QC, acting for Vardy, complained that the media was full of jokes about the “ignorance of lawyers” on technical matters relating to the case. He was right – but that doesn’t mean the jokers don’t have a point.

A post from Coleen Rooney’s private Instagram account which was among documents released following the end of the libel trial.
A post from Coleen Rooney’s private Instagram account which was among documents released following the end of the libel trial.

At another point, Tomlinson repeatedly pressed Rooney during cross-examination by suggesting that a picture taken within the Instagram app and uploaded direct to its Stories function would have automatically saved to her camera roll. It was part of his wider point about how loss of evidence can affect anyone – but any teenager would be able to tell you that the “save to camera roll” feature is an optional function. Rooney, very much a millennial despite her two decades in the public eye, put him straight.

Pages and pages of emoji-laden WhatsApp was analysed for meaning, with the legal document system struggling to process the various different forms of smiling face. At one point, Rooney’s barrister Sherborne described a message sent by Vardy’s agent mocking Rooney, which ended with a series of “laughing emojis”.

Vardy told the court she disputed this characterisation of the document: “I don’t know whether they’re laughing emojis.”

Sherborne replied, somewhat dismissively: “OK, crying with laughter.”

Some parts were perhaps more theatrical flourishes than ignorance, such as when Sherborne asked Vardy to explain what “FFS” meant in a WhatsApp message.

Vardy awkwardly checked what she could say with the judge before replying: “For fuck’s sake.”

Potentially the most crucial ruling in the entire case took place back in November 2020, when Rooney’s legal team unsuccessfully argued that the general public understood that celebrities shared the login details for their social media accounts with their agents.

Mr Justice Nicklin disagreed, ruling that the true legal meaning of the post blaming “Rebekah Vardy’s account” was actually a direct accusation against Vardy herself. This allowed Vardy to argue at trial that – although it might have been her account that was used to do the leaking – her agent Caroline Watt was potentially acting unilaterally.

Text messages between Rebekah and Jamie Vardy after reports Wayne Rooney was asked to tell Jamie Vardy his wife needed to reduce her media presence. These were among documents released following the end of the libel trial
Text messages between Rebekah and Jamie Vardy after reports Wayne Rooney was asked to tell Jamie Vardy his wife needed to reduce her media presence. These were among documents released following the end of the libel trial

People in government and prominent lawyers not involved in the case have been keeping a close eye on proceedings – partly because, like many of the rest of the public, they are voracious gossips. But there is a more serious concern that the proceedings are not a good advert for English legal system. They have been worried about the public mockery of how potential evidence was lost by Vardy and her agent, such as a phone being dropped off the side of a boat in the North Sea shortly after a request was made to search it.

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But most telling is how Rooney made her original accusation against Vardy. No one – not even her husband, Wayne – knew that she had been carrying out a sting operation by putting out fake Instagram updates and limiting the audience until only Vardy’s account remained. In the past, Rooney might have taken the conclusions of her investigation to a friendly newspaper journalist, who would have consulted with the outlet’s lawyers about how best to report it, before going to Vardy for comment.

Instead, Rooney wrote out her j’accuse letter by pen in a notepad, before asking her brother to upload it to Twitter. Much was made by Vardy’s lawyers of the fact she did not did not follow standard journalistic practice in failing to give advance warning to the subject of her story.

A post from Coleen Rooney’s private Instagram account made on the day of her viral public post accusing “Rebekah Vardy’s account”.
A post from Coleen Rooney’s private Instagram account made on the day of her viral public post accusing “Rebekah Vardy’s account”.

It’s likely that a brief chat with a media lawyer on how to phrase the accusation could have saved Rooney a lot of trouble. But the legal system should consider whether this is realistic for most members of the public, what individuals are expecting when they post material on social media, and whether they should be held to the same standard as major news publishers. Because as things stand, it might not be very long before we get another “Wagatha Christie” case.

https://www.theguardian.com/law/2022/may/20/wagatha-christie-puts-englands-legal-system-on-trial-in-the-social-media-age

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