Are expensive libel cases on the way out?

CROSS POSTED ON BYLINE.COM

Some fascinating new  official figures  showing a startling decline in the number of new libel cases have been  revealed on the excellent media law blog Inforrm.

They show a 40 per cent drop in the number of new libel claims in the Royal Courts of Justice between 2014 and 2015 from 227 to 135. Admittedly 2014 had a large number of  new cases but the blog points out that there has been a steady decline in libel actions since 1992. You can read the blog and see the statistics  in full here.

The introduction of the new Defamation Act is the biggest change to libel in the last two years which aimed to reduce the number of claims by establishing ways of settling issues without coming to a full trial in court.

The jury is still out on how effective this new legislation is. But it appears that the huge cost of mounting a libel trial and a cap on damages that will be awarded to the person defamed has had a chilling effect.

As the blog said: ” Even with costs budgeting, both parties’ cost of a libel case taken to full trial are likely to be of the order of £700,000 (for example, Stocker £682,000; Yeo£716,000).

Damages are effectively capped at £275,000 for the most serious possible libel (see Barron v Vines [2016] EWHC 1226 (QB)) but, in practice, even after a contested trial awards rarely exceed £100,000.

It has also been suggested that the Reynolds qualified privilege defence (now “Publication on Matter of Public Interest” under section 4 of the Defamation Act 2013) has, by encouraging journalistic responsibility, reduced the number of egregious libels and so the number of actions.”

Frankly this is all good news for bloggers who are threatened with libel cases from big and powerful commercial interests and powerful figures. Are they going to spend up to £700,000 with all the attendant publicity of a trial to take on a blog when the most they could get back might be less than £100,000? And they would have no chance of recovering their money either.

What this doesn’t disclose is whether the rich and powerful are using other means to silence critics particularly bloggers. This big drop in cases has been accompanied by a big rise in the number of people using the ” right to be forgotten ” imposed by the European Court to get Google to remove serious criticism of individuals from its search engine on the net.

This is a far cheaper and effective way of silencing critics. As Inforrm  reported earlier :

” Large numbers of delisting requests are now being made under the Google Spain ruling. Google’s most recent transparency report indicates that it has received 400,564 removal requests and has removed 42.6% of URLs covered by them.  Google has received 48,979 requests from the United Kingdom and has removed 184,115 URLs (38.6% of those requested).”.

Given the internet is peppered with defamatory statements about people could this be a new and more secretive way of silencing criticism? It avoids the publicity of a libel trial and there appears to be no appeal and  no easy way of knowing this has happened.

Could this be the new way -arguing privacy – the rich and powerful stop legitimate criticism and damning disclosures about their past?

Defamation Act 2013: A sensible balance or a step back? – Philip Steele

Bloggers – this is a very succinct guide to the new defamation act which can into force on January 1. He makes some interesting points – like nobody can bring a defamation action if they do not act within a year. Honest opinion also replaces fair comment – which will protect bloggers with strong views which they can justify and the definition of public interest is widened with the courts having wider discretion. There is new defence of truth rather than justification- giving bloggers the right to show why they believe their statements are truthful. Altogether this seems good news, though the lawyer who wrote this piece seems to be looking for more complications. But he is a lawyer after all!

Inforrm's Blog

Philip-Steele-websiteThe Defamation Act 2013, which came into force on 1 January 2014, is a missed opportunity to provide clarity over precisely which elements are required in order to establish a claim for defamation. The courts have, over the years, made numerous attempts to define what is defamatory.  But Parliament missed the opportunity this legislation provided to bring clarity to the issue.

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