The dramatic rise in issued claims for defamation, in particular litigation concerning online publications, might – on the face of the statistics – suggest that the eagerly-anticipated Defamation Act 2013 has already failed in its objective of providing a greater protection to the media for responsible journalism and for freedom of expression.
The bar was supposed, through enactment of the new statute, to have been raised for those seeking to complain that published content is libellous. The overriding purpose of this recent legislation was to overhaul the framework in which media, print and digital, will operate here in the 21st century.
The Act was widely viewed as heralding an era in which responsible journalists and publishers are given broader scope to defend their stories. This was, in particular through the setting of a higher “serious harm” threshold for those wanting to sue, as well as by introducing for the first time a statutory “public interest” defence.
Other aspects of the new statute include strengthening the comment defence and providing operators of websites a straightforward procedure which, if followed, would give full protection for content posted on sites.
Recent analyses of issued claims suggest that rather than the anticipated drop in the number of libel actions, there was instead a significant increase of 60 per cent in 2014.
In particular, it is reported that claims relating to content online increased four-fold last year.
This contrasts with a marked decline in the number of privacy injunctions following the controversy of “super-injunctions” as well as reliance by those in the public eye of alternative legal routes such as harassment.
Two swallows don’t make a summer. The boundaries of this new libel legislation, largely brought into effect in stages over just the past 12 months, will necessarily have to be tested by claimants and by those resisting such claims.
It is too early to assess the true impact of the new law. Media – and the laws seeking to regulate the limits of what current society regards as acceptable content –will continue to evolve rapidly.
The statistics for the last twelve months cannot sensibly be interpreted as signalling a long-term trend or a permanent increase in libel actions.
I believe that, as cases are brought before the court, the benefits and limitations of the new statute will crystallise. This process of giving definition to the impact of the new law will inevitably take some time: the courts here are now considering cases concerning the higher hurdles now faced by claimants.
In the meantime there are practical steps that can be taken by journalists and media, to engage with the new legislation and take advantage of the protection afforded by the more liberal approach to content.
The most significant of these is the new “public interest” defence. Prior to the Act, the concept had been developed over the past decade in a haphazard manner, via decisions of the courts here, following the renowned case of Reynolds v Times Newspapers.
The statutory defence provides certainty. For example, if your report is of a dispute to which the claimant was a party, you will not be penalised if you do not take steps to verify the allegations being made in the underlying dispute you are writing about.
Subject to a report of that nature, you will be treated as acting responsibly if you seek to put the allegations you intend to publish to the person or business to which they relate and give an opportunity for them to have a “right of reply”.
The new defence also explicitly allows for editorial judgment as to whether it believes a story to be in the public interest.
Content published online or via social media such as Twitter has resulted recently in legal cases such as those brought by the late Lord McAlpine. The lesson from these is to treat comments you put on social media just the same as copy to be published in print. Retweeting the defamatory remarks of another person can result in you being held responsible for libel.
Despite these hazards, overall the new legislation will strengthen the position of the media in this country; the early statistics must be treated with appropriate caution.
Christopher Hutchings is a media litigation partner at Hamlins LLP.