Mark Clattenburg has now been cleared of using racist comments by the FA. As such, he is now free to return to the top echelons of officialdom after 3 weeks in the mire. Mr Clattenburg expressed relief at being cleared of the charges, however, he has maintained all along that he was innocent of these charges, and as such he readily admits that he was scared for his career. The question now, which is on every defamation lawyers lips, is, should he now take action against Chelsea Football Club for defamation of character?
Referees have a difficult enough job, but to be accused of being a racist is beyond the pale, not just for referees but for anyone. Look at the most recent example of Frankie Boyle, who rightly took umbrage against being referred to as a racist and was vindicated in doing so via the Courts, thanks to swift and decisive action taken by his defamation lawyers. The protection of ones reputation on the internet is vitally important, especially for individuals in the public eye.
A distinction must be drawn in Mr Clattenburg’s case as to when the defamation actually took place. It cannot be said that the defamation took place when Ramires made his witness statement, stating he heard Mr Clattenburg make a racist remark to his colleague John Obi Mikel. Neither can it be said that the defamation occurred when the FA conducted its investigation. However, when the issue was made public, the defamation trigger was set.
The fact that Mr Clattenburg has now been acquitted of all charges means that the defamation trigger has now gone off. There is no truth to justify the allegations made against him. There can be no doubt that during the last 3 weeks his commercial and personal reputation has been detrimentally affected in the eyes of his peers and members of the public. His online reputation has been shot to pieces.
Had this complaint remained private and confidential we would not need to be having this discussion, but its leakage into the public domain has in turn unlawfully damaged Mr Clattenburg’s physical and online reputation, contrary to defamation law, thereby giving him a cause of action. Anything that happened before the matter leaked into the public domain i.e. during the investigation stages is protected by a privilege defence, anything that was said after that is fair game for all the defamation lawyers out there. There is no doubt that leaking this matter into the public domain has caused defamatory comments to made on various online forums, which has in turn led to the ‘Is Mark Clattenburg a racist?’ auto suggestion on Google. This can all be linked back to the leaking of this complaint into the public domain, and will therefore aggravate any damages in defamation that Mr Clattenburg will no doubt claim should he bring a claim in defamation.
Head of Media and Internet Law
Pinder Reaux & Associates