Defamation cases plummet 15%
Phone hacking scandal leads to lower media appetite for libel risk; celebrities have switched to privacy injunctions as their preferred tool; cases involving Charlotte Church, Morrissey, Nancy Dell’Olio and Imogen Thomas
London, UK, September 2012 – The number of reported defamation court cases in the UK fell 15% last year, from 84 to 71 (year ending May 31st),* according to research by Sweet & Maxwell, the leading provider of legal information.
“Public scrutiny following the eruption of the phone hacking scandal is leading to a lower appetite for risk for some media outlets,” says Korieh Duodu, author of Defamation: Law, Procedure and Practice (published by Sweet & Maxwell) and Partner at specialist media law firm David Price Solicitors and Advocates.
“Phone hacking has put journalistic standards under the microscope like never before.”
“Media companies are concerned that the phone hacking scandal could lead to the imposition of a statutory media standards regulator, and they have made every effort to put their own houses in order to avoid this. That will mean a more conciliatory, less controversial approach and fewer defamation cases.”
Sweet & Maxwell, a Thomson Reuters business, says that another possible reason for the fall could be the rising use over the last couple of years of privacy law by high profile individuals – rather than defamation lawsuits – to control their media profile.**
“The use of privacy law by celebrities and other high profile individuals has certainly increased over the last few years, with individuals using these new legal tools to try and stamp out negative stories before they arise,” comments Korieh Duodu.
“Privacy injunctions became increasingly fashionable as they could prevent damaging articles from ever seeing the light of day. By contrast, defamation law cannot generally be used to prevent allegations being published, but only to set the record straight through an action for damages after the event. This made the privacy injunction an extremely powerful legal tool for individuals in the media spotlight. The other advantage of a privacy claim is the ability to kill stories which are true.”
“However this remains a fluid and developing area of law. Tactics are changing as a result of recent rulings. New court procedures and cases such as those involving Ryan GiggsandJohn Terry have demonstrated that it will in future be more difficult to get anonymity orders keeping the identities of parties confidential. It will also be exceedingly rare to get so-called ‘super injunctions’, when even the existence of the injunction cannot be reported. The GiggsandTerrycases unraveled following public hearings at which judges dismissed the injunction claims, deciding that the strict criteria for maintaining the injunction were not met.”
“Such cases have demonstrated painfully for those clients how privacy injunctions can backfire by increasing the public’s interest in the very story that the individual is trying to quash.”
Celebrities involved in defamation litigation this year
Sweet & Maxwell says that there were only seven defamation cases this year involving celebrities, which was down from nine cases last year and the lowest number in five years.
Celebrities that were involved in defamation litigation this year include Big Brother star Imogen Thomas, Welsh singer Charlotte Church, former Smiths frontman, Morrissey, and Nancy Dell’Olio.
Other high profile individuals involved in defamation court cases, including business people and politicians, included Lord Ashcroft, Russian businessman Boris Berezovsky and financier Nat Rothschild.
Sweet & Maxwell says that the fall in defamation cases was led by a 36% drop in the number of cases against traditional media companies like newspapers and broadcasters, which reached a five year low of just 27 cases.
Celebrities finding it harder to get defamation claims off the ground
Sweet & Maxwell says another reason why the number of cases might have fallen is that it has become harder for defamation claimants, such as celebrities, politicians and sports stars, to win a claim.
“The hurdles to bringing a successful defamation claim are higher because of recent court decisions which should make it easier for media companies to defend claims,” explains Korieh Duodu. “Two important rulings in the UK’s appeal courts should mean that media companies now find it easier to run defences of ‘responsible journalism’ or ‘comment’”
“More claimants are being advised that their case may not be strong enough, even though it may well have succeeded previously.”
New defamation law set to shake-up number of claims
Sweet & Maxwell points out that the Defamation Bill currently making its way through Parliament could have a big impact on the number and type of defamation cases in the years ahead.
“There has been a lot of grandstanding by politicians and other campaigners about the changes in the Defamation Bill, but in my view the legislation fails to include very much that is revolutionary,” Korieh Duodu says. “Most of the Bill is concerned with putting into legislation recent changes made by judges in the courts to promote freedom of expression.”
Sweet & Maxwell has an archive of over 375,000 law reports and transcripts online via its Westlaw UK & Lawtel services.
* Statistics on defamation cases based on research using Sweet & Maxwell’s online services, Lawtel and WestlawUK.
** Research published by Sweet & Maxwell last year found that the number of court cases where privacy arguments were made by high profile individuals more than doubled, from nine in 2010 to 24 in 2011 (years to May 31st) . Based on research using Sweet & Maxwell’s online services, Lawtel and WestlawUK.
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