Packham to sue YouTube channel over Facebook post

Hi Tessa

This is your legal action and what I say here need have no effect on what you will do, but I think the first thing I should beg you to do is to try to keep it out of the courts. Your timing for this case is terrible, with Sir Bob Seely MP speaking in parliament about how celebrities and their law firms are using the courts to silence free speech. I am sure you know this, and all of the timings for the process in this case are in your gift, but it seems to me that Sir Bob’s initiative may have a bearing on the outcome. You are a lawyer so will know the court system better than I do. Maybe a judge will feel that a matter such as the one we are discussing, which may or may not revolve around the burden of proof on who wrote what to whom, is trivial and not worth a court’s attention. Maybe a judge will not wish to be treated as a kind of judicatory ATM. I will talk about how we could solve that later in this interim response.

Thanks for your emails and documents. Please excuse the brevity of this email. As I set out, with your deadlines so tight, I have not had time to find a lawyer, even if I had wanted one, or do much more than try to work out what it is you want us to do. Please forgive this interim response for consisting mainly of questions about the court case you say you want and short explanations of where I think you may be in danger of misunderstanding the workings of modern media.

Firstly, please let me discuss your timings. You have given us two deadlines to respond so far. Your first letter gave us a deadline of 4 February 2023 (possibly 9 February 2023 – it is not clear when you said ‘14 days’ whether you meant 14 working days) and your second letter a deadline of an earlier date of 1 February 2023. Your colleague Peter Higham said he would ring me up to give me the password I need to read one of the documents. I suggested he use text or WhatsApp instead. I note he has not texted, WhatsApped or rung me up yet. I expect he will be back in work on Monday. If he has time to do it then, that will give us two days to respond to your second letter and documents, which is fine by media standards but I know that lawyers are used to working on cases over months or years, so you may agree that it is unusually tight.

The document we are missing – that is, we have it but we cannot access it – is the one you refer to as a ‘password protected [sic] pdf’ which includes ‘account details’, by which I expect you mean bank account details, though I will not know what else it contains until I am able to open it. As soon as I get it, I will be able to respond to your letters and documents. That makes this an interim response only.

I am surprised that a document containing bank account details needs to be password-protected. Knowledge of a bank account number and sort code does not lead directly to bank fraud. Companies, including lawyers, publish their bank account details freely as a way of easing the payment process from their debtors. Unless you are suggesting that I am an especially high risk for committing bank fraud, I think you should consider not bothering to protect these details with a password you then do not issue.

It is something I notice that lawyers, accountants and branches of government like to do these days, and that is ask for a number they know, but the person they are asking does not. Sometimes they have previously issued that number by letter, sometimes by text, WhatsApp or phone call. The process of finding that number provides, I imagine, entertainment for the professional who issues it and welcome exercise for the person looking for it, but it serves to slow the process that the professional has instigated. My favourite one so far is HMRC, which asked our company to provide it with the name of the toddler group I attended in 1969 in twelve characters or fewer, lower case and all closed-up. I hope you at least sympathise.

I did have time to put the bones of your argument in front of our backers. Please do not get excited about the word ‘backers’. It is no guarantee of future backing. They are mostly people who have put £10 into Fieldsports Channel, and you are welcome to track them down and sue them individually, but I do not believe it will be worth Chris’s money for you to go down that route.

You may be upset that I talked about the content of a letter you had marked ‘Private and confidential – not for publication’. It is worth discussing here one of the precepts of contracts, and it seems to me to be a problem at the heart of your approach to this case. This surprises me, because the notion of the contract is one of the glories of the British legal system. I hope you accept that, just because you say something in a letter, does not mean it is true. For a letter to be confidential or private requires the agreement of both parties. As a result, we need not respect your words if we do not agree with them, nor do you need to respect our words. I know that the culture of law firms usually includes secrecy, due to the wealth and insecurity of their clients. That is not necessarily true of small media companies. Therefore, I am happy to talk about this case to our audience. Please feel free to let me know your views on this.

I say that this is a problem at the heart of your case because it exposes the difference between new media, such as our channels, versus the legal world plus the more old-fashioned media. On the UK’s terrestrial TV and radio networks, where Chris runs his broadcasting career, pronouncements are made to be believed. When a lawyer writes ‘private and confidential’, it is inherent in those words that the lawyer expects the recipient to respect their wish for privacy and confidentiality. It is the same when the man on the Air Ministry roof explains what the weather will be, and many traditional broadcasters express surprise when he gets it wrong. We belong to a new media that is more consensual. While your and Chris’s world become a kind of voluntary societal tinnitus, YouTube channels such as ours depend on viewer engagement. The motto of our viewers is, ‘I’ll be the judge of that’, which means we have to be more in tune with them than, say, a BBC channel has to be with its audience. I expect that that is not only an advantage to us in this case, but a signpost pointing the direction that society is taking. I am putting this to you, because I think it will help you understand the context of social media including our area, social TV.

The upshot of my discussion with the Fieldsports Nation, our group of backers and hinterland of wider viewers, is that they broadly agree with my approach to you in this letter. They have many individual thoughts on the matter, which they have made clear to me in WhatsApps, emails, texts and phone calls in the last couple of days.

One thing they would like me to do is consult a lawyer, something I have already told you we cannot afford to do. It looks like we may have to. The Fieldsports Nation are significant stakeholders in what we do and I do not like to move without their say-so. It may be that one of them is a lawyer and prepared to work for free. I can ask.

You may feel that the two days you have given us to respond to your email will not be enough time to do this. As I mentioned: as – so far – the plaintiff in this case, you are in control of timings. I cannot demand more time. Depending on when or if you reply to this interim response, it is up to you to decide whether or not 48 hours is enough time (that is, if Peter has a moment to make that phone call by 5pm on Monday 30 January 2023) for us to book a lawyer,  produce a response that pleases that lawyer, and for that lawyer to turn it around and send it to you in a form that pleases us. It is arguable that you took eight months to contact us about the posts you don’t like. So far, I can see that you are trying or at least believe you must be seen to be trying to be fair, so I will leave that one with you.

Thanks for limiting your costs to £2,000 in the period between sending your first letter, following the work you must have done to find the two posts you want taken down, and your second deadline of 1 February 2023. We find at Fieldsports Channel that the system usually adopted by lawyers of charging on an hourly rate provides the best combination of transparency and value to our clients, and I am pleased that £2,000 reflects the amount of work you are putting into this case up until 1 February 2023.

I may have got that wrong. Unlike other lawyers, your charging structure may be a percentage of the final amount you make for your clients in court, in this case 16.66%. If that is the case, I fear you are working for Chris pro bono, as you would put it. I have long been impressed how lawyers are able to confuse the word ‘good’ with ‘free’.

Please accept that a lawyer working for us is likely to advise us to re-post the two posts you do not like, in order to make it clear that we believe we have done nothing wrong. I think if we do that, we should add a note to each of them pointing out that this is the subject of litigation by Chris and Leigh Day. As you know, we have taken them down temporarily in a spirit of speedy resolution with you and Chris.

Next, I would like to delve into what you want in your two letters, and the documents we have been able to read so far, before 1 February 2023.

For the sake of clarity, reviewing our interim response and our final response falls into the £2,000 costs area for Chris. It is up to you and Chris of course but, if you are on a hourly rate, I would support him if he were to refuse to pay you more than £2,000 for going through it. Perhaps you could pass that on to him.

In your first letter, you ask for five things: two of which are demands for money, one is an agreement to obey the law, one a retraction of the posts you do not like and one an apology. On the face of it, it seems that you are keener on money than Chris’s reputation. There may be a legal nicety hidden within the form of the five demands that explains this and which I do not understand. I am sure you will accept that money allows you the luxury of being able to engage a court and a judge to deal with matters you may come across in your life that others sort out with a phone call. I was surprised to see on Instagram this morning that Chris offers the same advice. Complaining to the Daily Mail about an article, he wrote: ‘Why didn’t you ring me , or my sister , to get your facts right ?’ [his grammar]. I think we would reach a speedier resolution were he to follow his own advice.

Our response to your first letter points out that we have no money for a lawyer, so we would be forced to fall in with your demands. In your second letter, you come up with a figure of £12,000, and a manner and process for an apology. That is an interesting reaction to a definition of ‘no money’. It suggests that the lawyer you expect us to hire for a win would cost more than £12,000. Is that likely? I will leave that with you to ponder.

What should we do next? Many members of the Fieldsports Nation agree that, rather than insult the overloaded courts system with this case, mediation is the most sensible first step. I agree with them. What do you think?

As part of mediation, it may mean we will have to argue the point over whether or not we were ‘impugning [Chris’s] honesty and integrity’ with our two posts, but it will probably avoid the expensive idea of wheeling prosperous handwriting experts in and out of court or courts in order to prove our respective points, when the point could be proven one way or another in a matter of minutes, without a court case, by our original offer: Chris makes a video with us writing down something and we show what he has written alongside a visual of the ‘death threat’ he claims he was sent. That would play well with a modern social TV audience. It would achieve the audience that I expect you would like to achieve.

Please can I make a point about the syntax you use on your letters and documents? Sub-editing is stock-in-trade for media people, and perhaps not so much for people in the legal industry, so please forgive me if I come across as snooty or picky. You use the phrase ‘extraordinary seriousness’. Please can I ask you to re-examine your use of emphatics? In conversation, they can work. In text, they do not. Imagine the written English sentence as coloured paint on a brush. You can create your painting by using different brush strokes, each a different colour. The whole effect may be pleasing. Using an emphatic puts the meaning beyond your control. It is like trying to paint with several colours on your brush, something I suggest you should leave to a professional, partly because it invites derision if you get it wrong. Here is an example. There used to be a sign in the toilets on trains that read ‘Do not flush in any station’. In this case, ‘any’ is an emphatic, as ‘extraordinary’ is in the way that you use it. After people started writing ‘…except Yeovil’, the train operators changed the sign to read ‘Do not flush in station’. Do you see what I mean? ‘Seriousness’ is only barely a binary situation. You may describe something as ‘serious’ or ‘not serious’ and I may still not understand what you mean. Adding ‘extraordinary’ makes the word ‘serious’ less serious.

Ironically, you have at your disposal, in Chris, a good-quality author. Maybe it is his editor who did the hard work but his book Fingers in the Sparkle Jar, if you have not read it, is well worth it. I understand from his recent interview in The Times that he is planning to spend more time as a sculptor. I hope the rumours that the BBC dropped him from BBC Springwatch are not true. You are only his legal adviser, but you should urge him to write more.

Let me know if you would like to go to mediation, or if you would like to fast-forward to an expensive court case, or if you have another less costly idea than a £12,000 payout to you and Chris that I fear our bank will be disinclined to lend to us. Whether at mediation or court, and if we were to agree that we would make a statement, we are likely to argue about the relative benefits of various means of speaking to a wide audience. For example, you want us to read an apology to Chris that goes out on our main Fieldsports Channel Facebook page (currently 200,000 followers), yet the original post you do not like went out on our Fieldsports News Facebook page (currently 10,000 followers) and was seen by a fraction of that audience. Do you consider that a proportionate response? You want us to put an apology to Chris in a prominent position on the front page of our WordPress site where it is likely to be seen by around 15,000 people, yet the original WordPress post was seen by a few 100s. We are mildly insulted that you do not ask us to put an apology on our YouTube channel (currently 330,000 subscribers and 10 million individual logged-in viewers, i.e. rather more than BBC Winterwatch) but we forgive you. In previous correspondence, I have mentioned making Chris part of the media we agree to put out. He, too, has Twitter and Facebook pages with 500,000+ followers each, though I note his YouTube channel only has 13,000 subscribers.

I should warn you that if, as part of this process, we have to put back up the posts you do not like, the publicity surrounding this case will mean they get more views than they have had. I have bookmarked that figure and, if we reach a point where you force us to go to court and you demand disclosure, I will let you know what it is. I will then bookmark the figure that the posts receive thanks to the publicity your court case will provide. I expect the disparity between the two numbers to be significantly larger than the original viewcount. Let us wait and see but please be prepared to shoulder some of the blame for this from Chris due to your handling of this case.

In this question of how to promote a statement we agree to make, I worry that you will take the oldfashioned legal/media view that an audience is fixed, like a flock of sheep that cannot escape its field. I agree that an audience is finite (only Sepp Blatter was able to announce that his last FIFA World Cup enjoyed a TV audience of more people than there are) but it is not fixed. When judging the power of whatever statement we make, you have to take into account the relative power of the statement itself, not the audience currently available to the platform on which it is promoted. We have seen that it is possible to become president of the United States of America with little more than a single Twitter account. We all have Twitter accounts these days. I cannot speak for you but none of our Twitter followers are president of anywhere. Think to yourself how that could be, and that gives you a basis for how we can work out how we would say what you would like us to say, if we agree to make a statement.

It is worth adding, as I made clear in our initial response, that we are happy to have Chris on our show. I can go further and say we are always happy to host Chris, whether we are apologising to him or attacking him. You may be aware that after my attempts to invite him to the Game Fair Theatre in 2019 were foiled by some of the UK’s shooting organisations, he generously invited me to take part in a chat at his theatre at the Bird Fair.

Whether at mediation or in court, I suspect we will have to discuss the timing of your action. Did it take eight months for you to find the courage or the evidence to approach us? Was that because you or Chris were keen for our alleged impugning to reach a peak? I am not sure how to measure impugning, or whether a cleverer person than both of us has established a kind of impugnograph which produces an optimum moment of impugnment to launch a court case. As a result, I am left with the impression that the amount of time the post stays up is not important to you. Is this true?

Whichever the reason, eight months seems a lot. And to land it in the middle of the SLAPPs debate is doubly brave of you, in my opinion.

Sir Bob Seely, who is MP for the Isle of Wight which includes Chris’s girlfriend’s family’s zoo, brought ‘SLAPPs’ to Parliament this month. These are ‘strategic lawsuits against public participation’, which Sir Bob describes as “effectively legal gangsterism”. Is that a kind of libel against the legal profession you could consider suing for? You can read about it in The Guardian.

Whatever your view of the inelegance of the acronym, it is the subject of his private member’s bill to penalise what The Guardian calls ‘wealthy public figures’. The newspaper says that Sir Bob claims these people “exploit the court system” for “legalised intimidation” of “investigative journalists, campaigners and watchdogs”. As a private member’s bill, it is unlikely to become law, but you can imagine it as a bellwether of public opinion on the issue. You are a legal adviser not a media adviser, but you may consider asking yourself and Chris which of the parties in the matter we are discussing most easily fits the definition ‘wealthy public figure’? Us, the freelance writer Ben O’Rourke, whom you plan to sue, you or Chris? I am not suggesting that Chris should accept libels or even, as in this case, alleged libels as collateral damage on his rise to BBC prominence but, in common with the bulk of the British public, we don’t have access to the courts to sue for it while he does.

Thank you for confirming that you are planning to sue Ben O’Rourke separately over this matter. I have lost track and I think you have, too, over whether we are copying Ben into our email correspondence. For safety’s sake, I am copying him into this. Do you have a view on this? Feel free to copy him into future emails, if you wish. Does this mean you plan to amalgamate your proposed action against us with any proposed action, which you mentioned in a recent email, that you may take against Ben?

I would be interested to know if you are planning to sue the Scottish Gamekeepers Association or The Times website, which carried similar stories to ours in their output.

• Packham did not forge death threat, say police on The Times website
• Chris Packham faces new claim of faking death threat on The Times website
• Chris Packham Sunday Times Story: Full Statement on the SGA website