One More Legal Issue Raised by the Shobukhova Debacle

I remembered one other potential legal issue raised by Shobukhova’s ban, but neglected to mention it in the previous post.  That’s probably just as well since it’s tangential to the doping case and much more speculative.

Paula Radcliffe is an elite distance runner from the United Kingdom and the current women’s world record holder in the marathon.  Shortly after the news about Liliya Shobukhova’s ban became public, she sent out the following tweet:

There are two parts to this tweet.  The second half merely states facts as related in news reports and provides a link.  The first part, however, is where Radcliffe might have gotten herself in trouble (although, the circumstances that would have to occur seem rather unlikely).

Radcliffe blasts Shobukhova as a “drug cheat.”  That very well might be true, but what if Shobukhova’s ban were to be overturned and the drug screening results invalidated?  It seems to me that if that happened, Radcliffe might have bought herself a defamation lawsuit.

Defamation is the area of law that deals with slander and libel (topics that were separate under the common law).  Because Radcliffe’s statement was made via Twitter (“Twibel” if the neologism ever catches on) there are probably a host of jurisdictional issues, but I don’t want to delve into those.  For sake of simplicity I’ll limit the discussion to English defamation law assuming that Radcliffe tweeted from the UK and that most of her Twitter followers who would have read it are also in the UK.

At common law and under the Defamation Act of 1952, defamatory statements that disparage a person in his profession are considered defamation per se:

In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.

The statement that Shobukhova is “a drug cheat” obviously has to do with her status as a professional runner.  Thus, if the statement is false and no other defense applies, Shobukhova could sue Radcliffe for defamation and would not have to prove that she was damaged by the statement in any specific way.

The defenses available to defamation defendants in England and Wales have recently been clarified by the Defamation Act of 2013.  Truth remains an absolute defense to a defamation action.  However, for purposes of discussion, we’re assuming that the ban will be overturned and the drug test results invalidated.  In that case, truth would not be available as a defense.  What other defenses might apply to Radcliffe’s situation?

“Honest opinion” replaces the common law “fair comment” defense under the new legislation.  That defense is only available, however, when “the statement complained of was a statement of opinion.”  That doesn’t seem to be the case with Radcliffe’s tweet.  One definition of “a cheat” is a person who knowingly violate the rules of a game or competition.  Radcliffe didn’t say “Shobukhova seems like a drug cheat” or that “I think Shobukhova is a drug cheat”; she said that Shobukhova has been exposed “as a drug cheat.”  That seems pretty clearly to be a statement of fact, not an expression of an opinion.

To give my best guess as to how this hypothetical defamation case would turn out, I tend to think that Shobukhova would lose.  The reason is that Radcliffe based her statement on reports that (as nearly as I can tell) came directly from the organization that imposed the ban and reported the drug test results.  In that situation, Radcliffe would likely be able to show that she made her statement in good faith reliance on sources of information a court would likely agree were trustworthy.  The fact that later developments undid Shobukhova’s status as a drug cheat would not negate Radcliffe’s good faith at the time she made her statement.

I’m not sure whether this sort of “good faith” defense is available under English law, but it’s a defense that makes sense.  Especially in cases involving high-profile public figures (well, Shobukhova has or had a high-profile in the elite marathoning community anyway, even if not in the general public) people should be able to speak without fear of their reasonable statements coming back to haunt them.  Radcliffe might have been a little too eager to see Shobukhova get some comeuppance, but that by itself is hardly any reason to haul her into court to answer for her statements.

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