13.4.04

TEXT'n'TELL that sells could prove headache for libel lawyers

We've had all the headlines in the 'text-it like Beckham' saga and as more maggots provide comment for the media's feeding frenzy we have to ask where this will all end.

Tabloid editors couldn't want for better material and are happy to pay friends of friends of people who may or may not have at some stage been in the presence of - or as is alleged - bedded Beckham for their 'stories'. As it moves into its second week the media onslaught shows no sign of slackening pace.

So why has all this surfaced now? - the whole thing seems too well orchestrated to be a chance kiss-and-tell and given the sums of money exchanging hands behind the scenes it suggests a concerted campaign rooted in a desire for money and revenge. Max Clifford steps in to protect poor Rebecca Loos from these terrible attacks on her character .... and now we have Sarah Marbeck's daddy defending his daughter's integrity ... perhaps some of the public may be fooled but the media are playing a well rehearsed game.

It is however a game that could prove a gamble if the Beckhams proceed with their threat to start suing. A quick spot of supper at Claridges, some quad biking and happy smiles can't hide what's at stake. Not just their marriage but more importantly (possibly also to them) is their brand value and all those lucrative deals they have going. No surprise then that its Victoria B's agency '19 management' who are taking control of matters and issuing the statements. With the News of the World (amongst others) staunchly defending it stands behind its reports the stakes are getting high and the play could get nasty.

If David Beckham is playing a clean game and is innocent then there's no reason not to get out the big guns and litigate. If however things are not all as 'unsubstantiated' as they claim, Beckham's legal team will have to think as strategically as legally when it comes to taking action.

To a cynical lawyer (not that MediaBeak is such!) the carefully crafted phrase 'unsubstantiated' does not equate with not true but rather not proven. This technicality translates into a subtle yet crucial point when it comes to a defamation action. If the Beckhams litigate it would be for the likes of Ms Loos, Sarah Marbeck or those 'publishing' their stories to prove that they are true (and an interested public will not provide any public interest defence here!).

In the absence of photographic, DNA or reliable third party evidence all we seem to have are transcripts of alleged text messages.

Lets look at some background information:
DNA from a SIM card containing incriminating text was admitted as vital evidence in case against Real IRA bombers at the Old Bailey last year.

A recent survey by a top Italian private investigation agency Tomponzi reveals that mobile phones and text messages are to blame for revealing nearly 90 per cent of extra-marital affairs.

Text messages cannot be retrieved if deleted from both parties phones however if they remain on one or if they are available via a text-to-e-mail service such as Vodafone Mail then they can be traced.

Mobile phone companies can trace the numbers from and to which messages are sent and can be compelled by a court of law to provide such information.

So what does this mean for Beckham. Well unless Ms Loos or Marbeck can provide some physical evidence of their alleged affairs with Beckham then they seem to be relying on the text messages. If Beckham sued for libel based on their stories they would have to prove the content of the various messages to substantiate their claim that he was cheating on his wife with them and so rebut the libel claim. We have been presented with some fabulously lurid text messages attributed to Beckham but can these be proved. Allegedly contemporaneous notes were made of some of these messages but proving that they were authentic, came from Beckham's phone and were truly contemporaneous would not be easy.

A further question is how did they have his number or he have theirs? in the case of Ms Loos it is answered by the fact she previously worked with the Beckhams. This could complicate matters as she may be able to prove the receipt of text messages from his phone but that does not of itself prove the content. Added to this is the fact that he has several phones and these may have been used by others. There was a case in 2002 where a recipient of a sexual text message traced it back to a phone owned by the Norwegian prime minister but as it turned out it was his driver who had sent it.

So if the Beckham's decide to sue then it will be interesting to see if Beckham still says 'it's great to get my hands on this new Vodafone Live!'

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