Are expensive libel cases on the way out?

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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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Libel lawyers plan new way to silence the internet trolls

Britain’s libel lawyer community are extremely excited about a radical judgement by a New Zealand judge which effectively has banned  a troublesome troll for mentioning again the name of the person she attacked on the internet for the rest of her life.

The decision has been highlighted on the Inforrm blog  (see http://inforrm.wordpress.com/2013/06/21/new-zealand-has-the-harassment-act-just-swallowed-the-law-of-defamation-steven-price ) as a radical, cheap way of  avoiding expensive libel actions.

As the Wellington barrister Steven Price puts it: “Why sue for defamation when you can get an injunction by showing that a publisher has harassed and distressed you instead? For one thing, you don’t need to worry about all those pesky defences such as truth and honest opinion.”

As the Inforrm blog says: “The case was brought by lawyer Madeleine Flannagan )who was repeatedly savaged online by Jacqui Sperling, a friend she fell out with. Sperling called her a liar, a perjurer, a prescription drug addict, a vexatious litigant, and a fraudster, and labelled her incompetent, abusive and “bonkers”. She also published private financial and medical details about Flannagan.”

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Jacqui Sperling

The case was undefended but the judge cited the New Zealand Harassment Act and ordered her to take down over 100 posts to be taken dow “unless and until the court permits reinstatement,”

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madeline flannagan

It also forbids her from directly or indirectly mentioning Flannagan or her family online for the rest of her life.

These rather drastic measures do effectively curb her  free speech – though they don’t apply to the printed word – she could still distribute leaflets across NZ attacking Ms Flannagan.

British interest is evidently combined by moves recommended by the Law Commission which want new take down orders to be enforced by judges  where false allegations cause considerable harm to an individual.

I must say Ms Sperling’s attacks do sound particularly  nasty. But one has to ask whether such a  harassment ruling could be used say by politicians or people under sustained  investigation for more legitimate reasons to get blogs taken down they don’t like. Or will it bring legal harassment tourism to New Zealand – if the blog happens to be read by people in Auckland or Wellington.

And will  it be effective? It is almost impossible to remove any copy made of a blog by someone else – so some of the damning blogs may still be there despite Judge David Harvey’s ruling. On the other hand it does serve as a warning to some nasty vicious trolls that they can be stopped without going to the libel courts.

Defamation Act 2013: A boost for free speech, Part 2: Public Interest and Privilege – Timothy Pinto

This is a second good piece of news for bloggers who follow political scandals, local councils, the NHS and bad practice in public services. You needn’t worry if you don’t get it 100 per cent right.You are going to have new rights protecting your reporting and comments so long as you can justify it is the public interest and produce fair accounts of public events. The great thing is you can report public protest meetings with full protection. Another invaluable piece of legal advice for all those following public affairs.

Inforrm's Blog

Houses of ParliamentIn this second part of four posts by Timothy Pinto of Taylor Wessing, he considers the changes to common law and statutory privilege which will result from the Defamation Act 2013. Part 1 on “Serious Harm, Truth and Honest Opinion” can be found here.

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