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

2. 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…)

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

4. 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!

5. “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

6. 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?

7. “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?

8. 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

9. 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…

10. 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)

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

12. 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”

13. 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

14. 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)

15. 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

16. 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

17. 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

18. 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

19. Contact details Rosie Burbidge
Associate, Fox Williams Publishing Group
t: +44 (0) e:

20. Thank you Any questions?