In the social media world, where brands are made and broken overnight, more ethical consumers search for the slightest excuse to turn against the establishment for lapses in moral judgment and anyone’s opinion and snap judgment, it may be easy to think that the days of managing, let alone defending your reputation are long gone.
After all, recent reports show that, since the Defamation Act 2013 came into force, defamation as a legal discipline may be on the decline – Thomson Reuters recently found that only 20 defamation cases reached a hearing in 2012 to 2013, down 58% on 2008-2009’s high watermark of 48. In fact, the total number of defamation cases fell from 86 to 63. As much as the new requirement of serious harm has done much to discourage and weed out claims with tenuous merit (replacing the more active approach to case management and strike-outs led by the Jameel line of cases some years ago), it may be fair to think that both the media and potential claimants are becoming more cautious and less eager to have the details of their dispute and any potential vindication undone by crowdsourced opinion, potentially creating a Streisand Effect of massive proportions and undoing the whole objective.
You may think that, but I think you may be wrong. Buried in these figures, alongside the drop in claims brought by businesses of 45%, was an increase in defamation cases linked to social media activity, which is increasingly becoming the new battleground in the war of public perception. We’re starting to see a line of cases such as Cooke. Lachaux and Brett Wilson, all of which have begun to fill in the blanks of the 2013 Act’s “plain English” approach to a traditionally obtuse and esoteric legal discipline We may yet be starting to see the new frontier and a move back towards a more equal realignment of the interests of business against the occasionally ill-informed individual.
That said, defamation is only a part of the online conversation prism. As it has struggled to re-establish its relevance in the information age, data protection has well and truly come out swinging, with the recent ground-breaking Vidal-Hall decision potentially opening up a whole new era of claims for non-pecuniary damage arising from breaches of the Data Protection Act 1998. The first few claims relating to data breaches are only now starting to make their way into court lists, and the next few years are going to be fascinating as Judges get to grips with the true worth of privacy, both before and after it’s compromised. Not only that, but the line between citizen “journalism” and the private purposes exemption from the 1998 act’s stringent requirement may being data privacy to the fore of public consciousness like never before, with the IP address replacing the PI litigator as the next wave of volume litigation.
As straight privacy cases also continue to make headlines and set the criteria for “reasonable expectation” and genuine public interests, with social media playing an increasingly important role both as a source and distribution channel of the most intimate information and the “right to be forgotten” continues to be defined through Google’s own imperfect implementation of the Spanish decision against them which gave birth to the very concept, the fact is that in the digital environment the defence of reputation and privacy is increasingly complex and involves more ingenuity than ever before. As technology has outpaced the legal framework which (tries) to regulate it, the next few years may well see a much clearer picture emerge of what businesses and individuals can be expected to tolerate in a 24-hour news cycle, often driven by contributors without any formal journalism training. The lawyers who can evolve to meet that challenge may yet truly help their clients continue to prosper in the unflinching gaze of a crowd which is sometimes not as wise as we wish it to be.
We are fortunate to live in interesting times, and what comes next may yet remind us that the basic rights to defend unwarranted attacks and the pre-eminence of privacy could make the enlightened even more lucky. Reputational risk is at the top of many agendas, and defending it may be see the playing out of what we as human beings love more than anything else – a comeback story.