Reported defamation cases in the UK fell by 27% last year, to the lowest level since 2008/2009 according to latest research.
Despite the overall figures declining, one exception is the number of reported social media actions (linked to sites such as Twitter and Facebook) which have risen to 11, up from 8 in 2013/2014, according to the Sunday Times, who published details of research carried out by Thomson Reuters (the Research).
The overall reduction comes following the introduction of the Defamation Act 2013 (the Act), which came into force on 1 January 2014. There had been huge debate over the effect the Act may have on the number of claims being pursued and we can now start to see its impact.
The total number of defamation cases issued, including cases which have settled before trial (as opposed to claims which were reported following a final hearing), can be established from the 'Judicial Statistics', published each year by the Ministry of Justice. The 2015 statistics will not be available until June 2016. The full impact that the Act has had on claims being brought therefore remains to be seen.
What do the new laws mean for Claimants?
Individuals looking to bring a claim now have to show that serious harm has actually been caused, or is likely to be caused by a defamatory statement, whereas previously, they only had to show that the statement was false and defamatory.
Businesses seeking to pursue claims have an even higher hurdle as they now have to show that a defamatory statement has caused or is likely to cause serious financial loss. This greater threshold may explain the decrease in the number of reported claims brought by businesses, which, according to the Research have also fallen from 31 to 17, a significant 45%.
However, the increase in the number of reported social media related claims is not surprising, given how easily statements can be spread and shared amongst users. Once comments are widespread, they can be much harder to control and can go on to impact on the search results or suggested phrases that engines such as Google can generate.
The Research comes shortly after Owen and Karl Oyston, the owners of Blackpool Football Club, were each awarded £20,000 in damages after they were defamed online by supporter David Ragozzino.
The Oystons pursued claims after the publication of various, very serious, defamatory posts on a message board on 'fansonline.net'.
Judge Stephen Davies concluded that the posts 'have gone well beyond vigorous criticism about the claimants' management of Blackpool FC in footballing and in financial terms'. He also concluded that the posts had been read by 'a significant number of readers, certainly in the hundreds and, possibly, into the low thousands'.
How the Courts will interpret serious harm was also considered in the recent case of Lachaux v Independent Print Ltd, Evening Standard Ltd, AOL (UK) Ltd. Further detail on this case can be found here. The key point to note is that each case is to be taken on a case-by-case basis, and the Courts will consider both the extent of the publication and the seriousness of the allegations.
Since the introduction of the Act, claimants (both individuals and businesses) are considering alternative ways in which they can seek to vindicate their reputation and limit damage, through appropriate crisis management and PR strategies, or where possible, seeking a retraction or apology, so as to avoid litigation completely.
Claimants are also considering alternative causes of action, such as claims in respect of privacy, harassment, data protection or copyright issues.
For example, unlike defamation claims, a claim for the misuse of private information may be pursued where the allegation is true or where the claimant doesn't want the truth / falsity of the statement in question being on trial. This also avoids the claimant facing issues in respect of serious harm under the Act. However, there must be a reasonable expectation of privacy and damages in privacy claims are generally lower than in libel cases.
Practical Steps - what can you do?
Any person or business faced with a crisis situation that involves the publication of false and defamatory statements should be pro-active to limit any damage which may be caused.
Urgent legal advice should be sought so those affected can make informed decisions on how to manage the reputational impact. The first 12 hours of a crisis situation are the most critical.
In addition to the legal issues faced, it is often about big picture focus, strategic thinking and PR. Companies should ensure that they have an actively managed social media presence which can be deployed to detect and avert potential problems before they develop.
We have an expert team within the Dispute Resolution and Compliance team at Shoosmiths who can guide clients through a crisis - the internal investigation, their interactions with regulators, media management, external communications and any resulting litigation. We have links with PR consultancies and experience of deploying positive PR strategies. The team can work with you to provide expert support and guidance in that all important first 12 hours.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.