A: “Sticks and stones may break my bones but names will never hurt me” so the saying goes. Unfortunately the reality is that anyone who is on the receiving end of a disparaging personal attack (particularly from someone with whom they used to be involved in an intimate relationship with) will attest that whilst they didn’t necessarily break their bones as a result it did cause a great deal of pain and upset.

Using the law of defamation you can sue someone for their defamatory speak about you whether it is in print (libel) or in the spoken word (slander). Defamation law does not necessarily require the victim to be named in order for them to pursue an action. However the victim must be easily identifiable from the words printed or spoken. With very famous individuals this can be easy to prove as they already have an established public profile. An article disparaging a certain person in the public eye yet failing to name them can be actionable as readers across the country may review the article and work out who the mysterious individual is as a result of descriptive background information on them in the article. You mention that you have friends in common and share the same social group and are concerned that others in this group may realise his song (s) are about you and have their opinion of you lowered. In such circumstances it is possible that whilst you have not been named you are identifiable for the purposes of defamation law, however pursuing any action would involve establishing these same mutual friends recognised the song (s) were about you and had a lower opinion of you as a result.

You mention that your ex not only makes disparaging comments about you but also makes reference to highly private medical information - the abortions. Such information is in my view protected by the law of confidence. You could not take action against him under the law of defamation for his references to these abortions as they did occur and therefore he would be able to defend any action. However he has no right to refer to this sensitive, private medical information so publicly without your consent. Your redress in this situation would be to use the law of privacy and confidence to obtain an injunction against him repeating these lyrics which refer to you. You could also potentially obtain damages from him to compensate you for the distress and suffering caused to you as a result of the breach of such sensitive, private information.

Whilst you do have potential causes of action in both the law of defamation and the law of confidence I don’t believe either cause of action will be straightforward due to the specific facts of your situation. Ultimately by pursuing either you may find that you bring yourself alot more stress and upset for little or no gain. Sometimes the law as we know it is not the answer to our problems and instead it is the laws of the universe that we should turn to. A well established law of the universe is the law of attraction, simply that what we focus on most, be it good or bad, is what we bring into our lives. You have clearly moved on from your previous relationship and now have a child with the right person. Your ex’s antics are merely dragging you back into a past that by your own admission was not a happy place. Perhaps it is time to shrug off his petty, bitter antics and instead focus on your baby, partner and a happy future. I wish you well.
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At times I can be quite fanatical about my allegiance and single minded in my approach. Whether it is towards a relationship which is well past its sell by date or a designer label that suited me when I was 18 but at 31 looks ridiculous, sometimes my loyalty totally impairs my judgment.

My relationship with British Airways is a perfect example. I have always been a big BA fan ever since my first ever flight with them aged 5. I remember admiring the pretty air stewardesses and the handsome air stewards and wondered how real life people could look like my Barbie and Ken dolls. A decade later and as a stroppy teenager I was utterly delighted when I got upgraded on a flight to Kenya due to an accidental overbooking. The luxury of travelling business class (and the free upgrade!) intensifying my zeal.

Such was my passion for BA that when I worked for Miramax I point blank refused to fly any other airline but BA. This led to a number of rows with my then boss, the feisty but wonderful Harvey Weinstein whose eyes used to water when he got my expenses sheet to sign off. Why oh why, he would ask wearily do you have to travel BA, when flying another airline will provide the same quality of service but will save me thousands? I would repeatedly answer that I loved BA, felt comfortable flying with them and really didn’t like flying any other airlines.

However like many great love affairs the love was one sided and BA finally came a cropper last December. I was spending my first Christmas in the slopes and it was my first ski trip for seven years. To say I was excited was an understatement. On the morning of the flight I received a text message half an hour before we were due at the airport to say that the flight had been cancelled with no other explanation. It was the 22nd of December and as I was headed to Zermatt which is a very long train journey from Geneva it was almost not worth going on the trip unless we got ourselves on another flight immediately. Good old EasyJet came to the rescue and later that evening we sat in our chalet looking at the Matterhorn so grateful that we had managed to get another flight and make our Christmas in the snow. It was a truly magical holiday, one of the best Christmases I have ever had and will always look back on fondly. We all forgot about the BA flight issue until the long train journey back to Geneva when we started calculating how much we had spent as a result of the cancelled flight. As a group of four adults and two adorable little ones we spent approximately £1,500 as a direct consequence of BA’s cancellation of our flight. Soon after we returned I wrote a long letter to BA and asked them to reimburse us for the expenses we incurred and to refund the cancelled flights. I explained (in detail) my longstanding love affair with them and how I felt that they should not only do the right thing and refund our flights and our expenses, but also make a gesture towards loyal customers to show they valued our business.

Four months on and I have only just had my flight refunded (I don’t believe my fellow passengers have as yet) and been offered a mere £94 compensation which I rejected yet has been sent to me in a cheque anyway. And this has been after four months and numerous correspondences. It has utterly enraged me that BA appear to have absolutely no interest in doing the right thing (they are actually obliged under EU laws to reimburse customers for expenses incurred as a result of cancelled flights) for the right reason – to show a long standing customer that they do appreciate their loyalty and wish to retain their custom. Like many flagging relationships sometimes you need a real slap in the face to get your perspective back and walk away.

And that’s exactly what I am doing. I am now a fully fledged born again Virgin. Mr Branson will be getting my business and loyalty with pleasure…

I would be grateful if you could provide some clarity on the visa rules.

A: “I’m an alien, I’m an illegal alien, I am an Englishman in New York” - Sting.

Our Yankee cousins love to term non Americans without the correct visa for their stay as ‘illegal aliens’. The consequences of being found to be an ‘illegal alien’ are rather harsh. You will be put on the next plane back home (wherever that is) and will have a big black mark against your name at the US immigration office meaning in the future they are entitled to refuse you entry into the country as a result of your previous visa issues.

Under the visa waiver program you can enter the USA for 90 days or less for tourism or business. So you can use this visa waiver to legitimately be in the USA for business reasons as well as personal. You should be eligible to travel under the visa waiver unless you have been convicted of a criminal offence/found to have links with terrorism or been previously refused entry to the USA. You can also apply for a H1B work visa permit, the problem with this is it requires you to be sponsored by a US company and only your US employer will be able to apply for this visa for you. As you are self employed this isn’t appropriate for you.

You don’t mention what type of visa your boyfriend has but I am presuming it is a H1B visa which has been arranged by his employer. If that is the case then under that visa if you were his spouse you would be entitled to live with him in the US and be covered by his visa.

However getting married just to stay in New York with him does seem a bit extreme but if he is planning on being there long term (under the H1B visa you can normally live and work in the USA for six years) then you may need to consider your other options as your visa waiver will only allow you to be in the country for 90 days, you will then have to leave the country and re-enter under a further visa waiver. It is possible that if you try and use this system to your advantage by leaving every 90 days and coming back to the UK to see your family or going to Mexico or somewhere and then returning to the US that the immigration authorities will work out what you are up to and refuse you re-entry which could potentially mean you are never allowed back into the US again.

I would consider your options carefully with a specialist Visa advisor and also discuss the future with your boyfriend, you need to be aware of the fact that you can’t keep using the visa waiver program indefinitely and at some point you will have to work out whether your future lies together across the pond. If it does then it may just be easier to take that next step in your relationship that bit sooner and formalise your relationship in the near future. Good luck with the move to NYC - my second favourite city in the world!

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A: UK employment law allows religious organisations to discriminate on grounds of religion or belief and in certain circumstances by discriminating against potential or current employees because of their religious or non religious beliefs. As a result it is possible that they may also discriminate, in certain circumstances, because a potential or actual employee’s sexual orientation is not seen as acceptable by the religious doctrine of an organisation.

Although there is no research available at present that details how many organisations have used these exemptions, there is anecdotal evidence that religious organisations have actually discriminated more in terms of employment on the ground of religion or belief, since this legislation was passed. Under the Employment Equality (Sexual Orientation) Regulations 2003 an employer ’so as to comply with the doctrines of the religion’ or ‘to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers’ may discriminate against potential applicants for jobs on the grounds of sexual orientation in terms of potential employees. They can also discriminate against current employees in the opportunities which they afford him/her and even discriminate by dismissing a current employee on the grounds of this legal exemption.

In the case of religious schools which have exemptions under the Education and Inspections Act 2006, employers are able to discriminate on perceived moral behaviour of an employee. Whilst you mention that your school is Church of England you do not state if it is a private school as opposed to a state school and therefore a public body. This will affect whether or not you can claim that you are being discriminated against for your sexuality. Under the Human Rights Act it is unlawful for public authorities to act in breach of the European Convention of Human Rights. Article 14 of the ECHR prohibits discrimination on grounds of sex or ‘other status’. The categories of discrimination under ‘other status’ are not closed and have been intepreted to include matters such as sexuality. The guiding principle is that people in similar circumstances should not be treated differently without an objective and reasonable justification for that differential treatment. In some cases, including differential treatment on the grounds of sexuality, such treatment will require the state to advance strong reasons establishing that the measure taken was appropriate. So if you are in a state school (i.e. a public body) and your employer starts to treat you negatively/differently as a result of your sexuality then you have every right to complain of discrimination and take your case against your employer to an employment tribunal. Others in similar situations to you have done this and succeeded. Last year a gay Christian man won a discrimination claim against the Church of England last year and was awarded more than £47,000 in compensation. He took the Hereford Diocesan Board of Finance to an employment tribunal after his appointment to the role of youth worker was blocked on the grounds of his sexuality by the Bishop of Herefore, the Rt Reverend Anthony Priddis. The damages he was awarded not only reflected his loss of earnings but also psychiatric injury.

In my opinion it is wholly unacceptable for anyone to discriminate against another individual on grounds of sexuality, race or gender, however sadly the loopholes in the current law mean that in certain circumstances, it is possible for people to be discriminated against in the name of religion. I hope your situation does not come within this legal loophole and wish you happiness in your burgeoning relationship.Do you have a legal question you’d like answered? Email Ask Ambi

A: Love and marriage, love and marriage, goes together like a horse and carriage, love and marriage, love and marriage, its an institute you can’t disparage
Frank Sinatra

Years ago, to a different generation, love and marriage really did go together like a horse and carriage. It was expected and encouraged, a respected institution. However since the early Seventies we have seen a decline in marriage rates in both the UK and the Western world that indicate that marriage is becoming increasingly less important to many individuals who whilst in love, choose to cohabit and never to formalise their relationship. This has led to the widely used expression of ‘common law spouse’ to describe cohabiting couples, an expression I must say always makes me cringe, partially because I am romantic and traditional and partially because the connotations of the term are that you have many rights in law if you live together and break up which is entirely true. If you live together and break up it is each man (and woman) for themselves. Scary but true.

So how can you try and protect yourself if you have decided that your relationship is not one which will conclude in marriage or if you are living together long term but are unsure if it will actually end in marriage but may just simply end?

I believe there are three essential things you should do when you live together in a long term relationship and I deal with each as a separate subject below.

GET YOUR HOUSE IN ORDER
If you are living together in a rented property then it is fairly simple. Make sure you take on a joint tenancy that reflects who is paying what. If you are splitting the rent 50/50 then you simply need to sign up to a joint tenancy, if you are paying different amounts then you need to ensure the tenancy agreement reflects this. I would also suggest having a legally binding agreement with your partner so that in the event you break up before the tenancy has terminated you know who is staying in the property and therefore liable for the remainder of the rent and if the departing party is to make any contribution towards the outstanding rent. Otherwise you could find yourself in a situation where one of you has the cost, stress and aggravation of paying double rent. At least if you pre-empt this by deciding these matters when you are in love and on good terms with one another then it can make the break up all the cleaner and less draining both financially and emotionally.

If you decide to buy a house together in joint names (either as beneficial joint tenants or tenants in common) then by law any proceeds should be split accordingly upon separation and either party can force a sale of the property in order to realise their share. Again you could pre-empt this by entering into a legally binding agreement that in the event of separation one partner buys the other partner out of their share preventing a forced sale.

In my opinion the real problems arise when one partner owns the property the couple are cohabiting in and there is no agreement in place as to the contributing partner’s rights in relation to any monies they have contributed to either to repayment of the mortgage or home repairs/improvements. It could be that the courts find that the contributing non owner partner is entitled to a share of the property but there is no certainty and will be dependent upon the specific facts of the case. Plus it is a long messy process which can become vitriolic. The last thing you need when you have just broken up. Again it makes sense to pre-empt this by agreeing in a legally binding document what the contributing non partner should receive in return for their financial contribution to the non marital home.

Love never dies a natural death
Anais Nin

Anais Nin may be right but all the love in the world cannot prevent the Grim Reaper taking away your loved one if their time is up. I know I said I was romantic but I am not naive and neither should you be. The fact of the matter is however long you have been together and however much you love each other, if you are not married and die without a will, you die intestate meaning your estate automatically passes to your family. The only asset which will have any kind of protection will be your home and that is only if you jointly owned it as benefical joint tenants. So everything else goes to your next of kin who may not know that you intended to financially benefit your partner in the event of your death. Dying intestate means your wishes can’t be carried out and can result in all kinds of claims being made against your estate making the entire grieving process for both your partner and family even more painful not to mention expensive, as action is taken to sort out, what really ought to have been arranged before the event.

Where there is a will, there is a way. Not for your loved one to return to you but at least for you to receive what they wished to bequeath to you, be it money, a home or a precious heirloom. So get that will sorted!

MUM’S THE WORD
So you are happily cohabiting and become broody and you decide that creating the pitter patter of tiny feet is actually a bigger commitment to each other than marriage. Time passes and a little bundle of joy arrives in your lives. Everything is wonderful and you play happy families and then…you split up. If you are married the custodial and financial arrangements will be dealt with in any divorce settlement, just as the McCartney’s are doing in court this week (though one hopes with slightly less press attention unless one or either of you are public figures).

However if you are unmarried and you do not register the child’s birth in both parents names (i.e. the father being named on the birth register too) then only the mother has automatic rights to the child. That means upon separation that the mother will automatically have the right to care for the child as she sees fit. The father will find it hard to have any influence if he is not also named on the birth register. It is possible for the father to apply to court for various orders (in relation to where the child is living, access etc) but this is all at the court’s discretion and is often subject to mediation and dispute resolution with the mother.

An option for unmarried, cohabiting parents is to enter into a legally binding agreement which sets out the custodial rights and financial obligations of both parties in such circumstances. This may be the last thing you want to think of when you are stocking up on Pampers and setting up the nursery but it may help prevent plenty of heartache in time to come in the event you do split up. At least the arrangements you set out in the agreement were mutually agreed at a time when you were in harmony with each other as both parents and partners and your biggest concern was the welfare of your child and this concern hasn’t yet been chipped away by the animosity of your break up.

I hope the above provides some guidance to those who choose to cohabit instead of marrying. To end this month’s column on a lighter note and to acknowledge the forthcoming Valentine’s Day I leave you with some quotes close to my heart about love…Happy Valentine’s Day…

Life without love is like a tree without blossom and fruit
Kahlil Gibran

Love all, trust few, do wrong to none
William Shakespeare

Being deeply loved by someone gives you strength, while loving someone deeply gives you courage
Lao Tzu

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A: The rise in the use of social networking sites such as MySpace or Facebook has led to much debate as to the legal repurcussions of use of, and certain conduct on, these sites. In my view it is only a matter of time before there will be a spate of Facebook related litigation which may set legal precedents for the future. In the meantime I discuss below the potential causes of action which may arise and legal rights which could be breached from misuse of these sites.

Defamation:

The nature of these sites mean that people often end up having debates that they would normally have more privately, either a one to one gossip or a bitching session in the office kitchen, and take them in an entirely different direction which mean the debate is now on a global level.

For example in the US town of Carmen, Alberta a number of unsolved sexual attacks had taken place over a period of time, without the perpetrator being caught, leading some residents to start up a Facebook group called ‘Kiss My Ass Carmen Rapist’ and leading to comments being posted by users speculating over the identity of the rapist and naming potential suspects. This ultimately led to the group being removed from the site due to the potential of defamation actions against the individuals and the site itself.

Defamation law has applied to the internet for many years now and therefore applies to all the networking sites which people use everyday. A defamatory statement can be broadly defined as a statement which is published about a person that lowers their reputation in the estimation of others and/or causes them to be shunned or hated. The most widely used defence in defamation is justification, i.e to prove that the allegation is true, which can often be much more challenging than one might first assume.

In terms of Facebook there is the more obvious defamatory statements such as suggesting a person could be a rape suspect and then there are the less obvious but still defamatory comments which have been the subject of many of your emails to me.To answer a few of your specific emails; yes you could give rise to a defamation action if you post a comment publicly or even to selected online ‘friends’ (some of whom may find it amusing to pass on your comment) calling someone a slapper, a stalker or a stingy bastard. One potentially also invites a defamation action by suggesting someone is sexually inferior (due to technique or ahem…size), stupid or a chav.

The consequences? The victim of your ‘cusses’ could sue you for libel and you could get taken to court and asked to prove the allegations you make, failing which you could end up being ordered to pay thousands of pounds worth of damages and legal costs plus you end up with a public court judgment against you. Does it make you think twice about posting that bitchy comment about your ex in a fit of pique at 2am when you have had one too many? I hope so. For years people have been saying drinking and dialling is the cause of social humiliation but I fear that drinking and Facebooking could result in more than just a slightly wounded ego particularly when your audience is not one recipient but potentially the world and its mother. My advice is if you really want to have a go at someone and vent your frustrations you are better off writing it on a piece of paper which you then shred rather than posting something inappropriate which you may remove once you have calmed down but will be forever inscribed on the pages of the world wide web and can be retrieved should someone really want it to be. The notion that deleting web pages or postings covers all one’s tracks is truly naive.

Privacy:

Whenever an individual voluntarily offers information about themselves to the world at large they effectively forego the right to keep that information private and to complain about use of that information by third parties. As the use of social networking sites has boomed the inevitable consequence has been that some individuals have disclosed some of their most intimate personal details and by doing so relinquished their privacy.

Many of you have asked about how personal details you have posted can impact upon you and the answer is that this is dependant upon what information you have disclosed as to the impact upon different areas of your life. Those of you that have described yourselves as smokers on your MySpace page and then apply for life insurance and avoiding informing your insurers about your smoking status (reassuring yourself that you are a casual smoker) could find yourselves being accused of fraud, it is after all illegal to make false statements in insurance applications or claims which could lead to you obtaining a pecuniary advantage by deception…AKA theft. Something the ‘missing’ canoeist John Darwin and his wife are all too painfully aware of.

For those of you constantly updating your status on Facebook such as: “9.15am X is hungover. 10.20am X is looking forward to lunch. 2.15pm X could do with a nap after lunch. 4.45pm X is counting down the minutes til it is hometime” shouldn’t be overly surprised if your boss takes you to task over your performance and refers to your status updates as evidence. Even if your boss isn’t your ‘friend’ on Facebook other colleagues of yours may be. You would be surprised how many people obtain details from people’s ‘private’ pages. You may be shocked that your ‘friends’ do this but you have to ask yourself, of all the hundreds of friends on your Facebook or MySpace pages how many are genuine friends of yours? We are not talking about your nearest and dearest/best friend since nursery school leaking this information but people you have added as friends who at the most may be one of your very close friends and at the least is merely a fleeting acquaintance.

Employers increasingly use junior employees to dig for information on prospective candidates through these social networking sites and this is something to bear in mind when you post drunken pictures of yourself, describe yourself as a swinger or edit details of how you know half of your 300 friends describing the majority of these as ’someone I hooked up with’. These are all details that can cast aspersions on your character and reputation and could potentially have serious consequences on existing or prospective employment. My advice? If you have 300 friends on Facebook then ask yourself do you really want all of these people to know all the information on your status updates? Or to know how many hook up’s you have had in the last year who have now been added as new friends? Or to see those cringey drunken photos from a wild night out? When you compare it to writing an individual letter to each of these ‘friends’ informing them of your latest exploits, relationship status and sending them intimate snaps from your latest holiday it may put it into perspective, would you really send such a letter to all 300 of your ‘friends’ on Facebook?

My parting pearls of wisdom are…use these sites, enjoy them for keeping in touch with friends, sharing holiday snaps, remembering birthdays and if you should so wish as your personal blog. But proceed with caution and don’t forget that once you type and post, those words will forever be in cyberspace and may one day come back to haunt you.
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A: There are a number of different laws in the UK which deal with stalking. The Protection from Harassment Act 1997 was widely drafted to deal with stalkers and other forms of harassment. Under the Act it is a criminal offence to cause an individual harassment, alarm, distress, or a fear of violence by a course of conduct.

Cyberstalking although not a specific criminal offence, is defined as use of the internet or other electronic means to stalk someone. Under Section 1 of the Malicious Communications Act 1998 it is an offence to send an indecent, offensive or threatening letter or electronic communication. Such an offence is punishable with up to six months imprisonment and/or a fine of up to £5,000.

If someone is sending you malicious or offensive email messages or stalking you in a manner which causes you to fear violence against you/causes you alarm or distress then you can make a complaint to the police. If your stalker is found to have committed a criminal offence then you can also obtain a restraining order against them to stop them from contacting you again. If they breach such an order then they could find themselves facing up to five years of time ‘inside’ at Her Majesty’s Pleasure.

However in your case the constant ‘visits’ to your various sites from various visitors, whilst clearly making you feel uncomfortable, is not in itself an activity which in my view constitutes a course of conduct which is actionable under the Act. Using the law to find out the identity of the individuals behind these IP addresses is virtually impossible without them actually committing a criminal offence. I can only suggest you consider separating work from play and using your website to promote your business interests and keeping your social networking sites strictly for friends. Perhaps you could increase the privacy settings on these sites so that only individuals known to you and accepted as your ‘friends’ can see all your personal information. Also have a look at the next Ask Ambi column which deals specifically with the perils of potentially foregoing one’s privacy when using such social networking sites.
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A: Your male banter is someone else’s sexual harassment lawsuit and you’d be an idiot to ignore that, no matter what you think of the legislation and the atmosphere in your workplace.

Sexual harassment is defined as unwelcome behaviour of a sexual nature, and even just one isolated act is enough to amount to it. It could be anything from sexual innuendo or lewd comments and it includes things which are written as well as spoken. Even if the environment of the workplace creates a hostile or humiliating atmosphere it still counts. Watch out for any sexually explicit material displayed in the workplace, downloading of internet porn by other employees, or any behaviour that creates an uncomfortable environment.

Normally sex discrimination claims must be made within three months of the incident(s) occurring. However she can make a claim after this period if she alleges that she was too scared to pursue her claim for fear of retribution. I would discreetly check if your new colleague has made any official complaint. I would also be extremely careful with your behaviour around her in the future. Perhaps inform your colleagues that their seemingly innocent behaviour in their eyes may well be deemed sexual harassment. I cannot stress enough how you and your workmates have to be aware of this. Everyday. Including in the pub after work.

You may have all just been extremely lucky to have escaped any such actions to date. Remember these kind of cases work in a strange domino effect – all it takes is one claim and everyone else suddenly feels harassed. Beware and behave!
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