Victoria Beckham recently found herself making legal news. In March last year, she visited a memorabilia shop. She advised three customers that the autograph on a photo of her husband was a fake. The shop owners sued, claiming her comments meant that they habitually sold memorabilia with faked autographs; that she was advising customers not to buy their memorabilia and that the resulting press coverage caused them to suffer a dramatic loss of business.
On an application to strike out the claim that the claimants were entitled to rely on the press coverage to show the loss they claimed, Beckham succeeded.
However, on appeal last week the Court of Appeal reversed the decision. What the Court of Appeal considered was when alleged defamatory words were republished, in what circumstances could the originator be liable for the re-publication? Ordinarily, unauthorised repetition of a libel is treated as a new act; a separate publication.
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The Court of Appeal, in a modern re-statement of the law, endorsed a 1991 judgment that a defendant can be found liable for the re-publication where it was, in the circumstances, the "natural and probable" result of the original publication. Such occasions included where the originator authorised or intended the re-publication or where the person to whom the original publication was made was under a duty to republish the allegation.
What the law was striving to achieve was a just and reasonable result.
Where defendants are actually aware that what they said was likely to be reported and if they slander someone that it is likely to be repeated in whole or in part, then they are liable. Where also a reasonable person in a defendant’s position should have appreciated that there was a significant risk that what she or he said would be repeated in the press – and that would increase the damage caused by the slander –then again it was fair she or he should be liable. The mere fact of re-publication is not enough. It has to be the natural and probable consequence of the original slander.
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While this part of the claimants’ claim has been reinstated, they still carry an onerous evidential burden.
For publishers, the decision may encourage claimants to look to recover damages for repetition of the libel, an existing practice when drafting a claim.
Publishers will be particularly on risk where they seek publicity for their own news, a commonplace PR strategy. Victoria Beckham may successfully defend the claim, but a publisher soon enough is likely to face a similar claim where the damages flow more from the republication than the original article.
Julian Pike is a partner in the media team at Farrer & Co
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