Monthly Archives: March 2011

The Defamation Bill – Libel Law For The 21st Century?

Much like the Claimants who use it, Defamation law in the UK has long been a target for intense criticism.

Our Defamation law is notoriously “Claimant-friendly”, to the point that anyone looking to bring a claim in the UK – whether an individual, business or other corporate body – does not have to prove that any actual harm to their reputation has taken place to be successful, reversing the “burden of proof” to presume that harm to the Claimant and leaving it to Defendants to prove otherwise.

Add to this the recent phenomenon of “libel tourism” – and the lack of a “single publication rule”, and it’s easy to see why the case for reform has gathered pace.

After an initial push from previous Justice Secretary Jack Straw and his hope that the coalition government would carry on the work, which started with Lord Lester’s original draft during 2010, last week saw the publication of the Defamation Bill, containing the most far-reaching proposals for reform of current defamation law in decades. Although welcomed by most, especially the Press, it has already been accused of not going far enough to address the “chilling” effect which the exponential growth in the number of libel actions has had on free speech and responsible journalism.

The key changes proposed by the Bill are:

  • A new requirement for Claimants to show that a statement has caused them “substantial harm” – As referred to earlier, the current position is that harm to the Claimant is presumed in libel cases, leading to the risk that many trials can produce an award of a very small or “nominal” sum in damages but still produce a huge amount of legal costs – the statement may be technically “defamatory” in that it can be shown to affect the Claimant’s reputation in the eyes of the man in the street, but the damages awarded as a result could only be in the region of a few thousand pounds, as seen in the first ever award for damages as a result of claims made on Twitter for £3,000 against a costs award of £50,000.  This new hurdle should lead to weaker cases being more easily weeded out of Court lists, which has happened much more frequently over the last few years in some notable cases.

However, the Bill contains no guidance on what kind of evidence will need to be adduced to show “substantial harm” – if Companies sue, will this mean that they will now have to show a sharp drop in profits as a result of the statement in question? Businesses may find it much harder to protect their reputations without detailed forensic evidence. If the Bill makes it into law, then any number of cases will limit that uncertainty, but a little detail may go a long way towards avoiding a lengthy exercise in getting to some hard and fast rules over when it’s actually worth suing or even threatening to do so.

  • A new defence of “responsible publication on matters of public interest – A statement may be found to be defamatory but there may be a very good reason for “publishing” it, usually on the grounds of informing public debate on a major issue.

The new defence would set out in legislation the requirements to be satisfied before the defence could be run, clarifying what has for years been a complicated and very specific defence which is only usually relied upon by Journalists.

The new proposals would see the Court adopt a more “flexible” approach and would allow other third parties to make use of the defence such as Simon Singh, who recently faced a lengthy trial over his criticism of chiropractic methods after a claim from the British Chiropractic Association. Although Singh won, the new proposals may well mean that similar cases would be fewer and far between and that anyone seeking to challenge current theory could do so without the threat of a libel claim. The defence is still fairly complex and could stand to be clarified even further, especially when dealing with issues of context.

  • A new defence of “Truth” – It’s long been the case, under the defence of Justification, that if a comment is true, then it can’t be defamatory. The Bill replaces a complex defence based on decades of case law with a clearer definition – it will be a defence to show that the imputation conveyed by the statement is “substantially true”. Existing cases will still be used as guidance, but the issue should be far easier to deal with. Even then, deciding what the actual “imputation” or allegation itself is may still be a complex and expensive task where the wording of the statement is unclear.
  • A new defence of “Honest Opinion” – Replacing “Fair Comment”, recently renamed as “Honest Comment” by the 2010 case of Spiller v Joseph, the new defence would protect statements of opinion (rather than fact) made on a matter of public interest where an honest person could have come to the same conclusion on the basis of the available facts when the statement was made.

Older cases suggested that the statement in question would usually need to include the facts upon which the opinion it contained was based, although this may not now be the case. To be absolutely sure of being able to rely on the new defence, including a summary of the facts will usually be very advisable in the absence of more detailed provisions than what is contained in the Bill.

  • Privilege – Certain situations are already recognized as being so important to the public interest that suing on the basis of any statement made during them is prohibited on the basis of “absolute privilege”, such as Parliamentary or Court proceedings. The Bill proposes to extend the situations covered by absolute privilege to include fair and accurate reports of privileged proceedings, which is very sensible. Other situations where whoever makes a defamatory statement can be shown to have a duty or interest in making it to recipients who have similar duties or interests to receive it will be extended to include, amongst others, scientific and academic conferences and reports of meetings of UK companies and fair and accurate reports of press conferences. 

  • A “single publication rule” – Under the current law, each publication of a defamatory statement allows a Claimant to sue in separate proceedings. In internet libel cases, each hit on a website constitutes a separate publication, meaning that archive material on a site can lead to a libel claim way after the expiry of the usual one-year limitation period.

The Bill proposes a change to a “single publication rule”, meaning that defamatory material can only be sued on for a year after the date upon which it was first published, no matter how long it stays on a site. However, if the material is then re-published by a different site or in a different medium, a Claimant will be able to sue even if limitation has expired, as well as if it has been published in a more prominent way after first making its way onto a site – on a homepage rather than a news page buried under several links.

This is a very sensible change to suit the Internet and Social Media age, but the Bill contains no guidance on situations where older material gains a second life and new exposure through social networks such as Facebook or Twitter, failing to deal with the issue of who would be responsible for the newfound attention. Tweets may link to older material, but may be taken as re-publications in a different medium.

  • Libel Tourism – Much of the criticism of the current system relates to “libel tourism”, where wealthy Claimants based outside the UK or EU sue here to take advantage of higher damages and a presumption of damage. Recent cases have seen trivial cases brought by foreign Claimants more readily struck out, but the Bill requires a Court to be satisfied that in cases involving Claimants outside the EU, the UK is clearly the most appropriate place in which a case should be heard.

For example, if an article generates 100,000 hits on a US website and 2,000 on a UK website, the chances are that it won’t be heard here.  This is a very sensible move towards considering the global picture in libel claims, but questions remain over how much of a problem libel tourism actually is, even if US lawmakers remain outraged by it and how the rules will be applied in practice; the Bill contains very little guidance on the point.

  • Removal of an automatic right to Trial By Jury – Libel cases tend to be lengthy and expensive due to the availability of Jury Trials; the only civil claim in the UK which allows for it. As much as the use of Juries may be the only way to obtain a fair ruling on what is defamatory in the eyes of the man in the street, the fact remains that most of the key decisions on points of law and fact in libel cases are made by Judges. The new rules would see Jury Trials becoming an option only where necessary in the interests of Justice. Again, this is very sensible but in the wake of the “Twitter Joke Trial”, many will ask whether the majority of Judges will truly appreciate the impact of technology on modern-day communication; most Judges still allegedly don’t “get” Facebook or Twitter.

In summary, the Bill answers several very important questions but raises a whole set of new ones. No provisions are made to limit costs in libel cases – even if the Jackson Review leads to the abolition of “no-win, no-fee” cases where Lawyers can recover success fees of up to 100% of their costs if successful, libel claims will remain expensive to the point where less-wealthy claimants simply won’t be able to afford them.  The hotly contested issue of whether businesses should be able to sue defamation in the first place has been ignored, probably to allay the fears of corporate claimants, even if they will now need to show “substantial harm” before doing so.

Still, it’s a start and a fairly well balanced one. Even though it has not become law just yet, the Bill is a very clear indicator of the likely future of Defamation Law in the UK and provides a very useful set of issues that can be used immediately to prepare for a more sensible relationship between the Law and the Media.

Tweet In Haste, Repent At Leisure-First Twitter Libel Damages Award In A UK Court

Welsh Councillor Colin Elsbury has been ordered to pay £3000 in damages and £50,000 in costs to a political rival in what is believed to be the first order in damages made by a UK Court over comments made on Twitter.

Elsbury’s tweet came during a by-election in 2009 during which he stood for election to Caerphilly Town Council against the Claimant, Eddie Talbot – Elsbury claimed that Talbot had been removed from a Polling Station by Police during the Hustings and eventually went on to win the by-election by 160 seats.

Despite claiming that the Tweet was sent as a result of mistaken identity – a member of the public was removed from a polling station on the date in question, but not Talbot – and an attempt to correct himself, Elsbury was sued and ordered to pay a combined total of £53,000 in costs and damages on March 10th by Cardiff High Court.

It’s always been the case that the law, and in this case UK defamation law, applies to online activity as much as offline activity. Twitter and any number of other social media platforms allow their users to post pretty much anything, including statements of opinion made in the heat of the moment and without a full grasp of the factual background, to a potentially global audience. This means that the only way in which unfair and defamatory comment can be restrained is either via a complaint to the website or platform in question or by taking legal action.

This ruling was only a matter of time in coming. Twitter has already been used to serve injunctions and has been used regularly as a forum to promote the reform of UK Libel Law – in 2009, commodities trader Trafigura obtained a “Superinjunction” to prevent the reporting of the fact that they had already obtained an injunction to suppress details of their alleged involvement in a chemical spill off the ivory coast. When news of the Superinjunction reached Twitter, along with the fact that it had been discussed in Parliament, it only took a matter of hours for the full details of the parliamentary question raised to leak online and the story became very public very quickly thanks to a number of motivated Political Bloggers and the “Twitterati” in general.

As is the case with many disputes, most libel cases tend to settle far before reaching Court, and although this area of law is a target for Government scrutiny in the wake of massive costs orders being made as a result of Lawyers entering into “no win, no fee” agreements under which they receive nothing up front but can recover up to twice their fees if the case is successful, internet libel is still very much a “growth area” for Claimants. After all, it’s far easier to attract thousands of “followers” to your account by making a controversial or defamatory comment without any major financial investment rather than spending years building up a circulation in print or through a recognised news website.

And that’s the point – once the Court has made a decision as to whether or not the statement in question is defamatory, which Elsbury’s Tweet almost certainly was:

“It’s not in our nature to deride our opponents however Eddie Talbot had to be removed by the Police from a polling station.”

The Court will then move on to consider what amount of damages should be paid to the Claimant.

Talbot’s case rested on the Tweet’s suggested meaning that he may have been removed as a result of the commission of a criminal offence and so “lowered his reputation in the opinion of the man in the street”,

Although the UK Court has awarded hundreds of thousands of pounds to very high profile claimants such as Elton John, who recovered £350,000 (the largest damages award of its time) in the 1990s after claims by a national newspaper that he had been involved in a “gay orgy”, since then awards have been seriously reduced.

In Elsby’s case, the fact that he only had 28 followers on Twitter almost certainly factored into the size of the damages award, although this is not the only issue. The recent Twitter libel claim involving cricketer Chris Cairns saw the Court confirm that the number of the Defendant’s followers was only one of a series of issues to be taken into account; in this case, only 100 followers were thought to have seen the offending Tweet which was enough for the Court to refuse an application for the Case to be struck out as an abuse of process.

When considering how much to award a Claimant, the Court will take into account a number of factors including the seriousness of the allegation, the size and influence of circulation, the effect of publication, the existing reputation of the claimant and the behaviour of both parties.

Even though the award made against Elsbury was relatively small when compared to recent cases which saw the Chief Executive of a Housing Association awarded £100,000 in relation to serious allegations of corruption and a Law Student awarded £10,000 after being falsely named as a paedophile on Facebook, this case proves the rule that small awards in damages for defamatory statements made against a Claimant who isn’t high profile enough to command a large-scale award can still generate huge awards in costs – in this instance, around 1700% of damages.

Although this case may well open the floodgates on a number of similar claims, care should be taken before heading to Court with a libel claim. A recent case has seen Naomi Campbell’s infamous 100% success fee in her 2004 privacy claim against the Mirror found to be an infringement of the Mirror’s right to freedom of expression, and is likely to leave “no-win, no-fee” arrangements with huge success fees living on borrowed time – this may mean that more lawyers refuse to take cases on similar terms and force Claimants to find their own cases from the start, which may be easy for Elton John but would have been much more difficult for Eddie Talbot.

Whatever the case and whatever the future of libel claims in the UK, this ruling will almost certainly pave the way for a number of similar claims and is a stark reminder of the potential consequences of posting defamatory content online. As much as your audience may seem anonymous at first, Bloggers, Tweeps and any other member of the online community should now be very much aware that, even though you may have thousands of “Friends”, a poorly judged Tweet can make you at least one very dangerous enemy who could prove expensive to be made to “like” you any time soon.”

Everything In Its Right Place -Product Placement Now Legal In The UK

As of 28 February 2011 Product Placement is now permitted in UK Television Programmes, allowing brands to pay for their products to appear during broadcasts for the first time. The first product – a Nescafe Dolce Gusto Coffee Maker – has already made its way onto ITV1’s “This Morning”. Although product placement has always been permitted in international films or television programmes, Ofcom’s new regulations have already drawn criticism from Church Leaders amongst others and were previously claimed by Andy Burnham MP to “put the reputation of British programmes up for sale”.

“TV Advertising is a tough market right now, made more so by the advent of time-shifting and digital video recording – many viewers can now fast forward through advertisements without having to watch them, making return on investment even harder to demonstrate than usual for the creative industry. Product placement allows brands to reach their audience in a potentially much more effective way by integrating their products into a broadcast, but given that this is such a new concept to UK television it’s going to have more than its fair share of critics.

Big shows such as The X Factor, Coronation Street and Come Dine With Me will be natural targets for brands, but only a few deals have already been done, with console and PC games developer Electronic Arts rumoured to be among the first. Many networks and producers still seem very cautious to avoid alienating their audience, who will most likely vote with their remotes if placement becomes too overt.

“Prop placement” has been permitted for years – characters in dramas have, for example, been able to drive cars from specific manufacturers without fear of reprisal, but the new regulations are designed to deal with the threat of “surreptitious advertising” and it’s going to be interesting to see who is willing to open up high-profile programmes to placement: it’s one thing to see Coronation Street with a “Harveys” ident, but would viewers put up with Ginsters Pasties or McCoys Crisps being handed over the bar? Interestingly, they won’t have to contend with Newton & Ridley being replaced by Carlsberg, even if it is “the best lager in the World”.

The rules for the new system are set out in Ofcom’s Broadcasting Code which covers, amongst other things, standards, sponsorship, fairness and privacy. The Code itself is based on the Broadcasting Act 1996 and Communications Act 2003 – both were amended by the EU Audiovisual Media Services Directive 2010, which regulates all “audiovisual media services” and was designed to allow television to compete with converging online channels.

Viewers shouldn’t expect a drastic change in content for some time to come; the revised Broadcasting Code sets out clear guidelines as to what it permitted and how placement is likely to function in practice:

– Product placement is now permitted in films (including dramas and documentaries), TV series (including soaps), entertainment shows and sports programmes

– Product placement is not permitted in news broadcasts, children’s programming, religious, current affairs and consumer advice programmes made for UK audiences.

– Product placement is not permitted in programmes made for or broadcast by the BBC

– Cigarettes, other tobacco products, prescription medication, alcoholic drinks, gambling products, all other types of medicines, food and drink that is high in fat, salt, or sugar and baby milk can’t be placed in UK programmes along with products that cannot by law be advertised in other ways, such as Guns or other weapons .

Tempting as it may be to think that, subject to these exceptions, it’s “open season” for placement, the rules state that there must be some ‘editorial justification’ for a product to be placed in a programme, i.e. the product must be relevant to what the programme is about and the content of programmes shouldn’t seem to be created or distorted just to feature the placed products. Storylines written to feature certain products won’t make it past Ofcom.

Similarly, programmes can’t actively promote placed products, give them too much prominence or make any claims as to how good a particular product may be. So, seeing a cast member in “Lark Rise To Candleford” using an iPad 2 whilst extolling the virtues of an added camera so that they can use FaceTime looks unlikely.

Ofcom is in the midst of a forced education programme to inform the public about the new system, with channels obliged to show “on-screen information campaigns”. A new “P” logo must now be shown to alert the audience that a programme will contain placed products at the beginning of a programme, repeated after any advertising break and again at the end. However, programmes originally broadcast outside the UK, such as any of a number of phenomenally-popular US dramas, will not need to show the logo, although any programme made specifically for broadcast in the UK through an Ofcom-licensed channel will.

Using the “P” logo may actually have a “Truman Show” effect, causing viewers to actively look out for any placed products and turn an audience who have been desensitised to brand messages into a much more alert “focus group”. Some research from YouGov already suggests that the majority of the audience will not be swayed by placement. Whatever proves to be the case, the branding of the majority of UK television is now very much open for business. How successful that business proves to be remains to be seen.