Figures released yesterday by Reynolds Porter Chamberlain show that 2009 saw the highest number of claims for libel lodged at the High Court since the introduction of the Civil Procedure Rules in 1999. Around 300 claims were issued in the High Court over the year, a 15% rise on 2008’s figure.
Libel cases are always newsworthy, and Libel as a concept has become even more of a cause celebre amongst the press over the last few years following the impact of the Trafigura Case and its alleged effect upon press freedom, the very public apology given to Kate and Gerry McCann after incorrect reports of their suggested involvement in their Daughter’s disappearance and a number of other judgments or out-of-court settlements which are claimed to have forced a real change in the way in which news is reported, leading to the much-theorised “chilling effect”.
What these figures suggest is that Libel is becoming more and more of an issue upon which either individuals or businesses are willing to take action to protect their reputation – a concept which is made more and more fragile by the pervasive influence of the Internet and Social Media as well as the ongoing struggle to maintain high circulation figures against the decline of traditional print media.
As the press begins to move online there will be even more virtual column inches to fill, and with the Government’s target of getting “everyone of working age” online by 2015, the Press will be forced to deal with a more well-informed audience who is willing to take action against them. Clearly, libel remains a very serious long-term issue for the Press even as the media in general is beginning to fragment across more platforms than ever before.
However, with the reforms set out in the recent Jackson Review of Civil Litigation still very much on the Coalition Government’s agenda, Libel Law may not remain so claimant-friendly for much longer.
Many Libel cases are fought on CFA or “No Win, No Fee” arrangements allowing for uplifts of up to 100% in legal costs payable by a Defendant in the event that a Claimant is successful. Lord Jackson looked to make such “success fees” payable by the Claimant rather than their opponent, a move intended to level the playing field and allow genuine defences to be put forward without fear of a disproportionate costs order being made against them.
Although the report also proposed an increase of around 10% in damages for libel claims, its aim was to create a less expensive system in which Libel cases could be fought, a consideration at the forefront of the various foreign claimants who choose to sue in the UK courts to take advantage of what has for some time been a very favourable environment for libel claims generally. Even if such “libel tourism” is not as widespread as previously suggested, it is still a very real issue.
In the wake of the Jackson Review, Lord Lester proposed a number of sweeping changes to the current system in the Defamation Bill. Although championed by Labour MP Jack Straw and thought to have been a casualty of the recent changes at Number 10, Attorney General Dominic Grieve told the Conservative Party conference at the start of October that the Coalition “will not shirk” from reforming UK Libel law, stating that “the problem is that the circumstances in which libel can occur have changed hugely… in the internet age, there (is) a globalised world where people were suing across borders.” The challenge was, in his view, “to reform the law so that people had the ability to protect their reputation while also not harming the principle of free speech”.
In a time where libel claims are increasingly brought against campaign groups, business rivals, bloggers and individuals as well as the Press and where technology has fundamentally changed the way in which we communicate and voice our opinion, the law will almost certainly have to change.
For now, at least, it looks like Claimants will continue to press their advantage for as long as possible. Notably, the number of cases actually reaching trial has remained static – in many cases, the threat of proceedings is enough. Defending against that threat, however, may soon become a much more viable option.
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