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Publish and be Damned
Cilex Journal – August 2014

Mark Smulian looks at the impact of the Defamation Act 2013 on the libel laws and the opportunities for Chartered Legal Executives

The Duke of Wellington reputedly told a 19th century newspaper to "publish and be damned", but until the Defamation Act 2013 took effect on 1 January, there were few publishers willing to take such a chance.

Libel laws had always offered defences of justification and fair comment but the difficulty of defending a case where a litigant merely had to prove that someone might consider their reputation had been lowered was a deterrent to all but the largest newspapers.

Add to that the complexity of libel cases, the expense of fighting them and the huge damages that could be imposed and one can see why publishers trod warily. There had long been pressure for reform, mainly from the publishing industry and civil liberties groups.

Chilling effect

Three factors helped this to finally take effect: controversial cases in which scientists found themselves sued for expressing scientific opinions on drugs or medical practices; the growth of libel tourism, where publications barely available in England would be prosecuted here by foreigners on the grounds that the English courts were draconian; and the arrival in government of the Liberal Democrats, who were sympathetic to civil liberties arguments.

The new Act, according to the Ministry of Justice, "reverses the chilling effect on freedom of expression current libel law has allowed, and the prevention of legitimate debate we have seen in the past"

It introduced a threshold of proving that a company had suffered serious financial loss before a case could be brought, though for an individual to prove serious harm to reputation is enough.

Other reforms included protection for scientists and academics publishing in peer-reviewed journals, and for anyone who reasonably believes that publication is in the public interest.

Libel tourism was quelled by a tighter test to prevent claims with little connection to England and Wales coming before the courts.

It is also now impossible to sue a secondary publisher, such as a bookseller or newsagent, for defamation if a litigant could reasonably pursue the primary publisher.

Juries, once notorious for imposing huge payouts on newspapers, have vanished from all but the most exceptional cases.

The Act also brought libel law into the 21st century by addressing material posted online, which had previously been caught by laws intended for print.

Website operators are better protected by a process that encourages those aggrieved to conduct their dispute with the person commenting, rather than with the site owner.

Actions may only be brought within one year, which now starts at the point of original publication not each time an online story is accessed. When the Act took effect, justice minister Shailesh Vara said: "The introduction of these new measures will make it harder for wealthy people or companies to bully or silence those who may have fairly criticised them or their products."

One prominent solicitor feels that there could be opportunities for Chartered Legal Executives to specialise there. Iain Wilson, a partner at Brett Wilson, says: "There is absolutely no reason why CLEs cannot become specialists in defamation and I imagine plenty already are."

"For someone interested in this area of law, it is easy to follow its development. There are relatively few defamation claims issued each year - around 200 - and perhaps less than a quarter of these will result in a judgment." "The cases are heard by a handful of judges and generally result in very considered judgments that are nearly always made available online."

Tamsin Allen, a solicitor at Bindmans, says: "I see no reason why paralegals should not specialise in this field, subject to the caveat that one would expect there to be less work in it."

This is because the thrust of the new Act was to discourage actions and so the number taken may fall, she expects. Ms Allen says the new legislation is "a bit of a curate's egg, as it can mean that what has evolved as case law for defence of the press is less flexible now that it's in an Act, but the serious harm test, lack of juries and the new single publication rule will all be helpful to the media".

Louise Lambert, a senior associate at Olswang, says the new Act is too recent for much indication of how it will affect the volume of work, since defamation cases before the courts are still being conducted under the old laws. "We will not see the picture until early next year", she says. "But newspapers generally have welcomed the Act and I think the change was seen by the media as a boon for free speech."

The big change is that corporate clients now have to show they suffered serious financial loss before taking action "but we do not know what 'serious' means until it is tested in court", Ms Lambert says.

A serious loss suffered by, say, Tesco is not of the same magnitude as a loss that would make a serious difference to the fortunes of a corner shop.

Libel tourism

Ms Lambert says libel tourism was being deterred by the courts anyway and will become even rarer as "the main change is that if you have a publication that sells 100,000 copies and only 5,000 are in this jurisdiction you can no longer claim here, it has to be done in the most appropriate place and that blocks most non-EU cases".

She suspects that as the new Act seeks to make it harder for companies to sue for libel, corporations in particular will seek other remedies.

This could be by actions for malicious falsehood, where one needs to show only that a statement about, say, a product was false and that it was made without the person making it believing it was true or doing so recklessly.

Companies might also use individual directors to take action, rather than do so as corporate entities, to evade the need to show serious financial loss.

Mr Wilson thinks it unlikely that cases in this famously costly field of law will become much cheaper.

He says: "The Act has not especially simplified this technical and complicated area of law. Defamation remains an area where lawyers lacking the requisite level of expertise can make very costly mistakes, particularly as the law develops at quite a pace."_

"Defendants may though feel more bullish about libel threats made by corporations because of the need to show that the statement has caused serious financial loss or is likely to."

More work may be required by lawyers upfront particularly in letters of claim, he says.

"In all cases there is now a burden on the claimant to show that a publication has caused or likely to cause serious harm to reputation", Mr Wilson explains.

Online is a developing area in both the legal and technological senses, with new ways of publishing appearing with bewildering speed.

Ms Lambert notes that anyone who objects to online publication will have to take action quickly as the one year 'clock' now starts with its original publication.

Mr Wilson says: "Great care needs to be taken with limitation in relation to online publications following the introduction of a single publication rule.

"Prior to the implementation of the Act the clock would re-set every time an article was accessed and read. It was not unusual for clients to tolerate online publications for a while and then eventually instruct lawyers to 'do something about it', perhaps because it has climbed up search engine results and/or has recently caused them embarrassment or difficulties.

"It will often be necessary to act quickly when approached by a client with a publication that is going stale. The courts will not disapply limitation periods lightly and the consequences for a client can be serious faced with the prospect of being defamed online ad infinitum."

On issues like 'serious harm', libel tourism and the defence of honestly held opinion, much of the new Act's workings are still to be determined as the courts consider cases and rule on them.

And there may be openings for Chartered Legal Executives in this specialised field if they want to seek them out.