Tag Archives: Defamation

The Defamation Act 2013 – Evolution, Revolution or Something Else Entirely?

Libel Lawyers have traditionally taken no small comfort (and secured their mortgages) from the fact that the UK was the “Libel Capital Of The World”. We developed that reputation from having particularly claimant-friendly defamation laws and from our Courts being willing to hear cases which saw those laws often being brought to bear by individuals based outside the UK but who claimed a reputation here which could be, and was, fiercely protected.

Something had to change, not least because of what was seen as the unfair pressure and “chilling effect” upon investigative (and sometimes less worthy) journalism exerted by the deployment of CFAs (or “no-win, no-fee” for the uninitiated) which allowed for uplifts on costs recoverable from the losing party in the event of a claim being successful. The Jackson reforms cut a swathe through CFA arrangements, and many expected the new Defamation Act 2013 to have a similar effect upon libel and slander claims in the UK when it came into force on January 1st, 2014.

So, is the 2013 Act the end of Defamation as we know it? No. Does it completely overhaul defamation law for the social media generation? No. The 2013 Act is effectively a “re-skinning” of Defamation Law that for the most part leaves the nuts and bolts of defamation law unchanged, but which also contains some significant new concepts designed to protect free speech and robust opinion. Here’s a whistle-stop tour:

Section 1 of the Act introduces a new requirement of “serious harm” in defamation claims. Now, not only does a statement have to have a negative effect upon a reputation in the minds of the average person in the street or expose the complainant to hatred or ridicule, it also has to be at least likely to cause “serious harm” to that reputation. For corporate claimants which trade for profit, that harm must be at least likely to cause serious financial loss. So far so good, but as with many sections in the new Act, this new element is in fact only a reflection of the fact that the Court have increasingly (mainly as a result of the Jackson reforms but also as a result of several key cases) struck out trivial defamation claims more readily.

The real devil, of course, lies in the detail – “serious harm” is not defined. This won’t be much of a problem for individuals as most claimants who take defamation cases to trial would only do so over the most serious of allegations, but it’s fair to say that the lack of clarity on what serious harm actually is will lead to satellite litigation for the foreseeable future and find many potential claimants opting to wait for some interpretative judgments before taking action to protect their reputation.

As for Corporate Claimants, the issue over what constitutes “serious financial loss” is likely to be even more complex. Are we talking about a drop in share price, diminution of goodwill, loss of profits or loss of trade? Remember that the usual rules of causation and remoteness will continue to apply, and that being able to blame an appreciable financial downturn on one statement will be very rare. Many businesses may be forced to let a defamatory accusation go unchallenged in an attempt to be able to show serious financial damage or retain forensic accountants to make the loss out, thereby only increasing the cost of dealing with the issue. However, it will be very interesting to see if “financial loss” proves means-tested, with smaller businesses finding it easier to take action over smaller amounts which to them are proportionately much more significant than to their richer counterparts.

Businesses may also (until the Court makes a particularly critical judgment) be well advised where possible to launch their defamation claim in conjunction with a personal claim made by any of their executives who is clearly identified by the statement and tarred with the same imputation.  In practice, it’s unlikely that the issue of “serious harm” will discourage the issue of a claim, but it will at least give corporate claimants a forced but valuable pause for thought and focus their attention upon issues around quantum which they’d probably only have to deal with after issue in any event.

Another major change is the introduction of a “single publication” rule, which finds the one-year limitation period in defamation claims running from when the statement in question is published. This is of huge significance to online publishers, who previously had to cope with a potentially perpetually-running clock that began ticking from a year after an aggrieved user clicked on a link to the post in question. However, this new rule does not apply to any “materially different” publication, and the issue of whether republishing on a different social network will count, or stop claimants from pursuing any other website or publication which repeats the original allegation. Archive collections may be safer, but anyone lending credibility to an allegation by repeating it won’t be.

Several defences have also been simplified, such as “truth”, “honest opinion” and “public interest”, but in ways which leave much of the existing case law largely every bit as valuable as before January 1st. The main concession to the online world comes from the new Section 5 defence, which completely protects Website Operators provided that they can show that they were not responsible for posting the allegedly defamatory statement. However, the defence can be defeated if, after giving the website notice of a potential claim, the poster cannot be identified and the site itself odes not follow the procedurally-complex procedure set out in the new Defamation (Operators Of Websites) Regulations.

In reality, unless website operators are willing to stand firmer on issues around free speech and train up their staff to recognise and deal with complaints before complying with the strict timescales that the new regulations prescribe, many may feel safer in relying on stern and well-enforced terms of use along with the complete defence available under Regulation 19 of the E-Commerce Regulations 2002 which protects them from liability if, once put on notice of defamatory or otherwise unlawful content being present on their site or servers provided that the offending article is removed “expeditiously”, i.e. pretty much immediately. For the time being, at least, we’ll probably continue to see a “take down culture”. At least, where Deloitte rates reputational risk as much higher up the ladder of corporate risk than ever before, many sites may remove first and question later.

The Courts will now also only have jurisdiction to hear claims from claimants who do not reside within the EU or a Lugano Convention state if the UK is the “most appropriate forum” for that claim. Again, this is merely a statutory re-statement of the current law rather than the breaking of any new ground. Finally, the abolition of Jury Trials in defamation claims will most likely only help in front-loading risk and costs by an increase in rulings on meaning in the early stages of the litigation process.

So, is the Act a missed opportunity? No, and at the same time yes. Much of the existing body of defamation case law will still continue to apply, albeit Claimants will have more hurdles to overcome. Free speech may be the ultimate winner, but in the short term and until some of the clear English of the Act is tested in Court, it looks like lawyers will be the only true winners as we help our clients get used to the treatment of their reputation in the new (old) world.

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“Half Of Twitter Users Risk Jail Every Day” and other Fairy Stories

The Christmas break’s a wonderful time to get a little perspective on any number of subjects – the meaning of life, your place in the world, what it all means and any other number of issues that won’t seem anywhere near as important when you’re back at your desk in the New Year.

Take, for example, the Daily Mail. Much-maligned as it may be amongst those of us who may like to think we know better than to believe some of its more Bill Hicks-baiting headlines, such as the classic which suggested that striking teachers were indirectly responsible for the death of a student who had the branch of a tree fall on her when she should have been in school last summer, it still commands a pretty large (if shrinking, along with most other print newspapers) circulation.

That circulation brings responsibility – you’d think that now would be as good a time as any to get some (enforced) perspective on that responsibility and redefine it where necessary in the light of the phone-hacking scandal and the Leveson enquiry, but this kind of thinking didn’t seem to be bothering Paul Dacre’s staff too much yesterday when it ran a typically carefully-balanced thoughtpiece under the headline:

“More than half of Twitter and Facebook users risk jail EVERY DAY”.

Now, this isn’t a piece that may attract any attention from Leveson as it doesn’t deal directly with the main issues making headlines during his enquiry such as phone hacking and the routine harassment of celebrities or public figures, neither of which the Mail has yet faced any substantiated allegations of, but what it does drag to the front of your mind is the issue of press ethics and the accuracy of stories.

I’m not talking about stories which deal in celebrity tittle-tattle or mindless trivia here. This story ran with a headline that’s substantiated with the following bullet points before the main text of its article:

“More than two-thirds would upload copyrighted material to the internet.

More than half couldn’t identify a defamatory statement.

A third were unaware that organising looting via Facebook or Twitter was illegal.”

Taking each in turn, copyright infringement doesn’t usually lead to a criminal offence unless it involves “making or dealing in an infringing article” or “making an article designed for making copies of a copyright work” and even then only tends to end in prosecution in instances of commercial-scale DVD piracy.

Uploading copyright content is usually dealt with by way of a threat of civil copyright infringement proceedings and as of yet we haven’t seen many cases against individual uploaders in the UK save for MediaCAT’s disastrous attempts to pursue members of the public on the basis that their IP address may have been used to download Cascada songs or porn earlier this year. The Courts were not impressed. No-one went to or risked jail. Some users of Twitter might do if they really are involved in copying on a large scale and yes, file-sharing does constitute infringement and is a bad thing, but I don’t see your average student ducking to avoid an armed team of Police swinging into his hall of residence any time soon for file-sharing one or even ten songs from any Band, even if they’re one of Simon Cowell’s.

Illegal downloading is a problem – it does make it hard to make money from music in the amounts that the industry used to, but much of the problems come down to advances in technology and an old business model in need of updating. Education of the downloading public will help to solve it, NOT scaremongering – that went out with the old “Video Piracy Is A Crime” trailers appearing on VHS Cassettes. It CAN be a crime, but your average Twitter user is not a criminal or at risk of becoming one.

Onto defamation, then. Yes, it’s a problem. Yes, defamatory statements, i.e. statements which “lower the reputation of the subject in the eyes of the ordinary reader” are made every day on Twitter and potentially to a much wider audience than may read them if made in the printed press. Yes, we have seen the first “Twibel” case fought between two MPs earlier this year which led to an award of damages at trial. Cricketer Chris Cairns brought a case over a Tweet which contained allegations of match-fixing this year which the Defendant failed to have thrown out on the basis that so few people saw it – he had enough followers for the case to proceed.

Reputation is made and destroyed over the social web in a matter of moments and the number of defamation claims involving social media is rising all the time. None of these cases have involved anyone going to Jail.

Finally, let’s look at the most serious issue – many Twitter users didn’t realise that criminal offences committed using social media would be punished in the same way as offline content or even that the use of a social network could constitute a criminal offence.

Bingo. Referring back to the Riots and the sentences handed out (and confirmed at appeal) over incitement to riot using Facebook to organise looting and anti-social behaviour and the risk of Contempt of Court over reporting the details of a superinjunction (possible in theory if the user can be shown to have known the terms of the Court Order involved and breached it), this is where the piece comes dangerously close to being factual.

There are a raft of criminal offences which involve the use of Social Media, such as misuse of an electronic communication system to send messages of a menacing or threatening nature, harassment, incitement to racial hatred, sending a “malicious communication” and transmitting obscene material.

Some of those responsible for such offences have gone to Jail, and many have been convicted. They are a minority, and they have been traced through their online footprint. Many didn’t realise what they were doing was illegal. These are good points, and made in both the article and in the research to which it refers. The public does need to get to grips with the fact that what they do online is punished in the same way as it is offline. What they don’t need is to read this kind of inaccurate headline. They may not know that what they’re doing is wrong, but even if half of Twitter’s users behaved in an illegal way, can the Mail really claim that they’d all risk Jail? What if it was a first offence? What about the actual offence which they commit?

Generating an audience through fear is nothing new, but in an atmosphere where the Press is asking itself some pretty searching questions about how it deals with the Public, this kind of headline is irresponsible at best. Yes, there is a risk here and yes, some Twitter users could go to Jail. Educating them as to the limits of acceptable and legal behaviour is one thing, but trying to “scare them straight” doesn’t work and is in any event the Government’s responsibility, not the Mail’s. Even if it were, the Mail would also still have an equal responsibility to run headlines which put across a balanced comment on this kind of issue. In this case, they’ve ignored it in the same way as the Twitter users they claim are at risk of incarceration.

Just like the Twitter users they refer to a “risking jail”, they should know better.

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