Media Law – DEFAMATION, OTHER LEGISLATION and

THE INTERNET19/3/15

Traditional role of the courts

• Protection of individuals from the damage that can be caused to the reputation by untrue statements made about them

• Numerous complex defences have been developed over the years

• Before the introduction of conditional fee agreements only the very rich could afford to bring libel claims

Balancing exercise

• Art 10 European Convention on Human Rights protects freedom of expression. The role of the judges in defamation cases is to ensure that freedom of speech does not outweigh the interests of the individual.

• Some would argue that the conflicting interests involved cannot be balanced and that the role of the courts should not be regarded as a balancing exercise, as the interests are not of equal weight.

More recent developments

• Article 10(1) ECHR states:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

BUT - Art.10(2)

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary”.

In the balance

Art.8 ECHR

The right to privacy and family life – subject to similar exceptions.

Defamation Act 1996 - Two forms of defamation

1. Libel – permanent form

2. Slander – transitory form

Note the practical distinctions between the two

Note also that there may be criminal libel

DEFAMATION CONSISTS OF:

“The publication of a false and defamatory statement concerning another person without lawful justification”

What is publication?

• The statement must be published to a person other than the claimant alone.

• It is not actionable in civil law to make a defamatory statement to the claimant alone out of ear-shot of a third person, nor to write a letter to the claimant containing defamatory material.

• If the claimant shows a potentially defamatory letter to someone else, there is a defence of volenti as the claimant, not the defendant, has published the statement.

A defamatory statement

• Sim v Stretch [1936] 2 All ER 1237 :

“A statement which tends to lower the claimant in the estimation of right thinking members of society generally, and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem”. (Lord Atkin)

Note also the possibility of innuendo

Role of the jury

• To establish the standard of ‘right-thinking members of society’

• To decide whether the claimant was defamed

• In recent years, a much more limited role in assessing damages

s.7 Defamation Act 1996

• The court shall not be asked to rule whether a statement is ‘arguably’ capable of bearing a particular meaning.

• This rule was introduced to enable the court to fix in advance the ground rules on possible meanings. Either party may now apply for an order to determine before the trial whether the words in question are actually capable of bearing a particular meaning.

Words must refer to the claimant

• The claimant must have been identifiable by the statement as an individual

• Note the possibility of a defence if the claimant is named accidentally in a work of fiction

“Without lawful justification”

Note the numerous, and sometimes complex defences available:

• Innocent dissemination• Volenti - Volenti non fit iniuria (or injuria) (Latin: "to a willing person, injury is not done") is a

common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or delict.

• Accord and satisfaction• Apology and mitigation - s 3 Defamation

Act 1996, embodied in CPR Pt 53 • Unqualified offer of amends under s 2

Defamation Act 1996

Defences (continued)

• Justification or truth• Unintentional defamation• The Electronic Commerce (EC Directive)

Regulations 2002 – ISP defence• Absolute privilege – was reported in court• Qualified privilege – public meeting/press

conference, fair/accurate/without malice• Fair comment on a matter of public interest• Limitation period exceeded

Remedies

• Damages• Injunction• Apologies in accordance with prescribed

procedures

Defamation Act 2013

Defamation Act 2013 which came into force on January 1 2014.

Operators of websites: Action against a website operator, on a statement posted on the website, it is a defence to show that it was not the operator who posted the statement on the website.

The defence is defeated if it was not possible for the claimant to identify the person who posted the statement, or the claimant gave the operator a notice of complaint and the operator failed to respond in accordance with regulations. A claimant can “identify” a person only if they have sufficient information to bring proceedings against the person.

The defence is defeated if the claimant shows that the operator of the website acted with malice in the posting of the statement. The defence is not defeated if the website operator moderates statements posted on it by others.

Defamation Act 2013

Protection for secondary publishers• Another way in which social media companies may benefit from the

new Act is the protection offered to secondary publishers.• The court's jurisdiction to hear actions brought against secondary

publishers is now limited to situations where it is "not reasonably practicable" for the claimant to pursue the primary publisher.

• This means that the social media users who post the offending material will be seen as the appropriate targets for a defamation claim as primary publishers and only in limited circumstances will it be acceptable to pursue the social media operator as a secondary publisher.

More legislationProtection from Harrassment Act 1997:(1)A person must not pursue a course of conduct—

(a)which amounts to harassment of another, and

(b)which he knows or ought to know amounts to harassment of the other

Malicious Communications Act 1988 (am.2001) cf. Tom DaleyOffence of sending letters etc. with intent to cause distress or anxiety.• (1)Any person who sends to another person—• (a)a [F1letter, electronic communication or article of any description] which conveys—• (i)a message which is indecent or grossly offensive;• (ii)a threat; or• (iii)information which is false and known or believed to be false by the sender; or• (b)any [F2article or electronic communication] which is, in whole or part, of an indecent or grossly

offensive nature,• is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far

as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated

Proposed Legislation

• Mobile Phones and Other Devices Capable of Connection to the Internet (Distribution of Sexually Explicit Images and Manufacturers’ Anti-Pornography Default Setting) Bill 2014-15

• A Bill to prohibit the distribution of sexually explicit images via the internet and text message without the consent of the subjects of the images; to provide that mobile phones and other devices capable of connection to the internet be set by manufacturers as a default to deny access to pornography; and for connected purposes.

Current Proposed Internet legislation

• 2015• Communications Data Bill (if Conservative government)• 2014-15• Counter-Terrorism and Security Bill• Communications Bill (expected)• Consumer Rights Bill (expected)• Data Retention and Investigatory Powers Bill• Digital Economy Act/Technical Measures (SI) (expected)• Mobile Phones and Other Devices Capable of Connection to the Internet (Distribution of Sexually Explicit Images

and Manufacturers’ Anti-Pornography Default Setting) Bill (PMB)

• Serious Crime Bill• Online Safety Bill (PMB)• as yet unnamed bill covering sites hosing "films that glamourise sexual violence and abuse"• Internet Communications (Regulation) Bill (PMB)• 2013-14• Anti-social Behaviour, Crime and Policing Bill• Intellectual Property Bill• IP address matching proposals (may potentially not require primary legislation)• Draft Consumer Rights Bill• Criminal Justice and Courts Bill• Deregulation Bill• Online Safety Bill (PMB)• Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill• Unsolicited Telephone Communications Bill (PMB)• Local Audit and Accountability Bill• Licensed Hackney Carriages and Private Hire Vehicles (Closed Circuit Television) Bill (PMB)• Surveillance of Telecommunications (Judicial Oversight) Bill (PMB)

Recent developments

• Conditional fee agreements• Diminishing importance of the jury• New and improved offer of amends

procedures• Lower awards of damages• Possibility of summary judgment in certain

cases

A recent case10 October 2012

Sir Elton John loses libel case against The Times

• Sir Elton John said he was concerned about the effect of the articles on his charity work

• Sir Elton John was not libelled by The Times in a series of articles about tax avoidance, the High Court has ruled.

• The pop star had complained about two articles, on "The secrets of tax avoiders", published in June this year.

• He said they implied he had been advised to engage in "immoral" schemes.

A recent case• But Mr Justice Tugendhat ruled that the pieces were not

capable of being interpreted in that way, or of containing any other meaning defamatory to the Candle In The Wind singer.

• Manuel Barca, representing The Times, said the references to Sir Elton were "fleeting" and made clear in each case that the association was in the past.

• In his ruling, the judge said it was understandable that Sir Elton should take exception to the inaccurate statement.

• However, he rejected as "lacking any possible basis" the claim that the words could bear the meaning that Sir Elton had been, or was suspected of being, engaged in tax avoidance.

Injunctions

• An injunction is a legal remedy generally taken out to stop someone carrying out or continuing with a particular action.

• An injunction can take several forms but will usually involve an urgent application to court. The reason for this is that in order to get an injunction the individual will have to show that there is no other suitable remedy other than an injunction.

Examples of injunctions

• An example of an injunction is when an individual, believing they may be in danger of being attacked or harassed by another individual, uses the court to prevent the individual from approaching them.

e.g. Divorce cases, restraining orders

Super injunctions

• Super injunctions have been in the news recently due to their unique nature and their potential impact on freedom of expression and privacy. A super injunction is granted simultaneously with another injunction in order to prevent the injunction itself from being placed in the public domain.

• This is best illustrated through an example in which a celebrity discovers a newspaper is about to run a story about them and as a result tries to obtain an injunction preventing the release of the story. In addition to the halting the release of the story, the celebrity will also want the fact that they have taken out an injunction hidden so that no one would guess why they had done so and, essentially, get the story anyway.

Breaking an injunction• If you break an injunction you are in

contempt of court and can, therefore, be sent to prison.