Defamation: Scrapping over the Beckham defamation case

A British tabloid newspaper seeks wide-ranging discovery of documents to support claims made against David and Victoria Beckham.

In September 2004 the News of the World published an article headed "Posh and Becks on Rocks" which suggested that David and Victoria Beckham cynically and hypocritically portrayed their marriage as a happy one - for PR reasons and for personal gain - when it fact their marriage was on the rocks.

The Beckhams sued for defamation, claiming that the article wrongly accused them of trying to convince the public that their failed marriage was perfect; wrongly claimed that their rows had brought Victoria to the verge of a nervous breakdown; and wrongly asserted that while presenting herself as a loyal wife in public, in private Victoria is insulting and disloyal about her husband David, telling everyone that he is a "vain, arrogant and ranting Essex yob" who has "lost the plot".

In England it is possible for a defendant to seek to justify a lesser defamatory meaning than that relied on by the plaintiff, and in its defence the newspaper sought to justify as true the following alleged meaning of its article:

Because their substantial fortunes depend on their public perceptions, the Beckhams have been cynically and hypocritically trying - for financial reasons - to convince the public that they continue to enjoy a happy marriage, whereas the true position is that their marriage has been rocked and seriously damaged by David Beckham's infidelity and betrayal of Victoria Beckham leading to inevitable tensions and rows between them.

[Note that the New Zealand Court of Appeal has just ruled (in TVNZ v Haines) that this form of defence to a defamation claim is not available in New Zealand; i.e. it is not permissible here to attempt to justify a meaning which is different from the meanings alleged by the plaintiff - see the related article on TVNZ v Haines elsewhere in this Update.]

In order to support its defence, the newspaper sought discovery of a number of categories of additional documents which it believed might assist it to prove that the Beckhams had been presenting a misleading perception of their marriage, in particular:

1. Documents relating to the Beckhams' public relations strategies;
2. Documents relating to the Beckhams' decision not to sue either the newspaper or Rebecca Loos over an earlier article alleging that David Beckham had had an affair with Ms Loos, and all documents relating to the PR consequences of those publications;
3. All mobile phone records relevant to allegations about David Beckham's alleged affairs with Ms Loos and with a Ms Esther Canadas (a Spanish supermodel);
4. All documents relating to Victoria Beckham's move to Spain and search for a property there;
5. All documents relating to the Beckhams' alleged commercial arrangement with a paparazzi photographer;
6. All documents relating to the termination of Ms Loos' appointment (and that of her agency) as the Beckhams' PA in Spain;
7. Documents relating to a holiday taken by the Beckhams in France (allegedly relevant to an allegation that David Beckham had not originally planned to participate in that family holiday, but later did so at the last moment, as part of a "staged" event); and
8. All documents relating to a "fly on the wall" documentary entitled "The Real Beckhams" including unedited versions of the programme and each day's filming in full (said to be relevant because of an allegation that Victoria Beckham insisted on certain footage being cut which showed her arguing with David Beckham and screaming at him).

The newspaper failed in its application for discovery of nearly all of these documents. The Beckhams' lawyers agreed to attempt to find out whether a particular telephone number had been used by the company which employed Ms Loos, and to request itemised bills for that number for the relevant period. The Beckhams were also directed to try to locate the "argument scene" amongst the unused footage from " The Real Beckhams" (although the Judge noted the limited probative value that it would have even if it could be located). In respect of the other documents sought the Judge ruled that they need not be provided, either because their relevance had not been established, or because he accepted that such documents did not exist or were not in the possession of the Beckhams.

The Beckhams had better luck with their counter-application for further discovery from the newspaper. They sought provision of the tape recordings made by the newspaper's journalists of their interviews with the Beckhams' former nanny, Ms Gibson, on which the relevant story was largely based. The newspaper resisted disclosure of those tape recordings, but was ordered by the Court to provide them to the Beckhams.

At the end of the first half the Beckhams are accordingly ahead, but there is clearly more action to come before the final whistle, and it won't be over until the thin lady sings.

Enquiries and information

For more information on any of the cases, articles and features in Media Law update, please email Alan Ringwood or call on 64 9 916 8925.