The Libel Trap How to avoid getting sued! Rosie Burbidge 22 April 2017

Libel, slander or defamation? Adverse effect on someone’s reputation Standards of society generally at the time of publication Includes “legal entities” e.g. companies But not anyone who has died or governmental bodies Spoken – tangible damage Written (inc. photos, videos, tweets…)

Recent change – Defamation Act 2013 Also: English case law Defamation Act 1996 European Convention on Human Rights (balance defamation with freedom of expression)

Now for a Shakespearean interlude Reputation, reputation, reputation! Oh, I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial. My reputation, Iago, my reputation!

“Serious harm” Publication must cause or be likely to cause “serious harm” to their reputation A business which trades for profit must show serious financial loss Injury to feelings is not enough A quick apology can reduce the risk of serious harm Claimants must prove damage so may wait before starting legal proceedings – they have up to a year from first publication

What is serious harm? Public statements that a Housing Association was making money out of the misery of residents? High ranking on solicitorsfromhelluk.com leading to the loss of one potential client? Allegations of discrimination in a UK plc leading to a temporary slump in share price?

“Real and substantial” Weeds out frivolous claims Five publications in one jurisdiction is not real and substantial Usually if there is “serious harm” it will be “real and substantial” Is the game worth the candle?

Publication Defendant = person responsible for the publication If you self publish, that is you! For a book – publication is likely to be inferred Each time a book is downloaded or bought there is a publication

Meaning The meaning of a publication is key Natural and ordinary meaning (i.e. the single “right” meaning) The publication is considered as a whole Repeating someone else’s defamatory statement is still defamation Indirect references…

The jury Before the Defamation Act 2013, juries were the norm Now the presumption = trial by judge Easier to bring a claim (and easier to defend)

Can they sue in England & Wales? Defendant based in England & Wales Defamatory content published in England & Wales

Timing One calendar year from date of first publication Court has discretion to extend e.g. if the Claimant became aware of the issue after the limitation period expired Single publication rule means it is only the first defamatory statement which counts – good news for online publications But not if there is a “material difference”

Damages Compensation for distress and loss due to the statement. Depends on the facts of the claim including extent of publication and lost business Also an Order to remove the statement and injunction against further use of the statement And publication of a summary of the court’s judgment If a settlement is reached, usually the parties agree a published correction or apology statement

How much do I have to pay?! Damages in the last 10 years “ceiling figure” of around £275,000 Highest award concerned persistent abuse on UK television broadcasts over a year long period. Took into account the “grapevine effect” Since the Defamation Act 2013, damages are at the lower end (around £20,000) PLUS legal costs Loser pays principle in English litigation E.g. Katie Hopkins = £24,000 damages plus £300,000 in costs (and her own costs)

Do you have a defence? The truth will set you free Honest opinion But you have to prove it And all possible readings of the statement must be true Honest opinion Must be clear that it is opinion, that you held at the time and that an honest person could have held that opinion based on facts available to them at the time Public interest (not interesting to the public) Balance freedom of expression against right to privacy Judicial or parliamentary proceedings

Other defences are available Peer-reviewed statements in scientific or academic journals An independent review by the editor of the journal and one or more persons with expertise in the subject matter ISPs have protection… until they know about the defamatory material Limitation period expired

Even if you avoid a defamation claim… Copyright infringement Trade mark infringement Malicious falsehood Breach of confidence Breach of data protection law Misuse of private information

Top tips Do a libel check before publication If someone complains: Have you written anything which might be defamatory? What about any quotations from other sources? If you are writing about a person – are they still alive? If a company – will your statement cause financial loss? If someone complains: Apologise immediately (without admitting liability) Remove the offending content Take urgent legal advice if necessary

Contact details Rosie Burbidge Associate, Fox Williams Publishing Group t: +44 (0) 20 7614 2654 e: rburbidge@foxwilliams.com

Thank you Any questions?