Does ISPO’s Editors Code need to be reformed to protect the relatives of the accused? – Freyja McLoughlin

The British press has been described as a ‘watchdog’ when it comes to protecting the public, and arguably this function is of upmost importance when reporting on criminal cases and their developments. The wide spread reporting of Wayne Couzins brutal kidnap, rape and murder of Sarah Everard, and most shockingly his abuse of his role as an officer in the Met Police to carry out such an atrocity has dominated headlines this Autumn. It is of vital importance that this case was given such a high level of exposure; because with such exposure and public outrage, organisations are forced to address institutional problems – and hopefully prevent such monstrosities occurring again.

However when there is such widespread coverage of an accused; because that is what they are before they have been convicted, no matter how compelling the evidence or the story, the risk of Contempt of Court is always lurking. In Couzins case, the Attorney General, Rt Hon Michael Ellis QC MP, recognised that the reporting was spiralling and subsequently published a statement saying,

‘it can amount to contempt of court to publish information relating to untested and unconnected allegations against the suspect and matters adverse to his character, the admissibility of which a Judge in due course may need to determine’. Contempt proceedings did not become an issue in Couzins case ultimately, however it is a useful prop to demonstrate how heavy the reporting was.

ISPO’s, Editors Code of Practice is one tool which is designed to present press reporting over-stepping the line and amounting to contempt. However ISPO is also, as its website declares, designed ‘To support those who feel wronged by the press and to uphold the highest professional standards in the UK press’. This article will therefore be focusing on if these ‘missions’ of ISPO still appear effective when focusing on the coverage of Couzins wife, Elena Couzins. As well as examining if the ISPO Editors’ Code of Practice sufficiently protects the privacy rights of family members of the accused. It is highly unlikely that family member coverage of an accused could amount to contempt under the Act, however perhaps under the veins of ISPO such prejudicial reporting, although not amounting to contempt, could be prevented.

The Editors’ Code of Practice is applicable to all signatory newspapers, which raises the first question as to its enforcement potential. Questions have been raised that ISPO are reluctant to enforce hefty fines or regulate stringently out of fear that newspapers will simply abstain from joining the organisation. Such a view was articulated by Brain Cathcart, when he stated that ISPO appear to ‘bend over backwards to avoid finding breaches of the code’ and this view point is embodied by the fact after ISPO has never, in its 7 years of existence, used its powers of investigation or issued a single fine. ISPO therefore doesn’t appear to be acting as a sufficient deterrent in any case, including when considering the privacy of the relatives of the accused; is a body which has never issued a fine really going to appear a serious threat to multi million pound newspapers? The statistics echo such a response, off the 9,766 complaints and enquires made to ISPO in 2019, 55 were upheld, a shockingly small number.  The second concern, which this article shall be focusing on is that the Clause’s themselves being interpreted too narrowly and thus failing to protect the public adequately; again this is echoed in the statistics, in 2019 of the 8,891 complaints which didn’t warrant a possible breach, 2,617 of these failed because they didn’t satisfy any criteria for raising a breach. This therefore suggests the threshold needed to qualify as a potential breach is higher than the public would expect it to be. The exception of public interest, which applies in 9 out of the 16 clauses adds another level of protection between the press and an infringement of a Clause. These factors combine mean ISPO appears the opposite of it what it declared itself to be in 2014, ‘the toughest press regulator in the Western World’.

One article in particular in Couzins case is surely the manifestation of everything ISPO is designed to prevent, with extracts including ‘what happened to his [Couzins] and children and where are they now?’. What follows from this questioning title is a detailed life story of Couzins wife, with loaded comments surrounding her English language skills, ‘She didn’t speak very good english’ and personal details surrounding their children and how they met. ISPO clearly states it does not cover issues of ‘taste and decency’ due to the infringement of editorial freedom it would result in, and perhaps this title would immediately be described as one of ‘bad taste’. However this article will be outlining how this article could also be perhaps be disputed, through Article 2, Privacy.

Clause 2 states

i) Everyone is entitled to respect for their private and family life, home, physical and mental health, and correspondence, including digital communications.

ii) Editors will be expected to justify intrusions into any individual’s private life without consent. In considering an individual’s reasonable expectation of privacy, account will be taken of the complainant’s own public disclosures of information and the extent to which the material complained about is already in the public domain or will become so.

iii) It is unacceptable to photograph individuals, without their consent, in public or private places where there is a reasonable expectation of privacy.

The first factor that is immediately apparent when considering Clause 2 is that it is marked with ‘The Public Interest’ exception.  Public Interest within the code is interpreted in a broad manner, and has the effect of allowing infringements of clauses such as ‘Privacy’ or ‘Reporting on Suicide’, if it is in the public interest to do so. It is indisputable that there was a public interest in the Couzin case. In the regular manner of there being a  genuine public interest in freedom of expression itself [bullet point 2], which prevents such atrocities being hidden away, and also in disclosure of an organisation failure [bullet point 1(4)], which seems particularly relevant given the criticism of the met policies toxic masculine culture. Yet it is surely arguable that there is no public interest in reporting extensively upon Couzins wife, she was not a threat to public safety, her existence was not a miscarriage of justice and her marriage wasn’t contributing to public debate in an constructive manner. The press are highly likely, if forced to justify themselves, to argue that Elena’s arrest for assisting an offender creates a public interest; and there is no denying that it adds weight to their argument. Yet Elena was released with no charge and hence had no involvement in the crime; following on from this, ZXC V Bloomberg confirmed that individuals have a realistic expectation of privacy pre charge, which was the exact status of any potential proceedings against Elena. The press are well aware that ‘gossip sells’, and what better sick gossip than a women’s husband of 15 years committing one of Britains most horrific crimes. It can therefore certainly be argued that ISPO are defending the press’s ability to print stories that sell well, rather than protecting individuals who are at the receiving end of the press’s glare.

And the principles of Murray V Express Newspaper indicate the law is heavily in favour of ISPO’s viewpoint; indicating Elena Couzins would not be successful in bringing her case to court. In Murray, J.K Rowling’s son was photographed with a long camera lense whilst being pushed down the street, much similar to the press photograph, which accompanied almost every article of Elena, of her walking down the street outside her house. In Murray’s case, the court ruled against the claimant, and presented their judgment in the following manner:

‘on my understanding of the law including Von Hannover there remains an area of innocuous conduct in a public place which does not raise a reasonable expectation of privacy and secondly, that even if the ECtHR in Von Hannover has extended the scope of protection into areas which conflict with the principles and decision in Campbell, I am bound to follow Campbell in preference.’

Both Campbell and Von Hannover respectively create the precedent that there can be no expectation of privacy in public places, especially when considering a ‘High profile individual’. An interesting angle when considering these cases in the voluntary nature of the ‘celebrity’ in questions, a princess and a model. And although J.K Rowling, an author, could be brought in this category, her son could not, and thus it is highly doubtful the court would move away from this precedent when considering Elena’s non consensual profile.

The case of Jones V Mail Online in 2019 was one of the few which resulted in a ruling against the newspaper; it was found publishing videos a crime season which included images of a dead body was sufficient to qualify as an intrusion into the family grief and shock. This therefore appears to be offering some level of protection to family’s, although it is the victims family rather than accused. However, the case was upheld under Clause 4, which requires publications not to break news of a death to immediate family, rather than Clause 2. This therefore suggests what ISPO objected to was the death being revealed by the newspaper, rather than the images and impact it had on the family. Thus even a positive ruling for the complaints does not appear to demonstrate IPSO taking a compassionate and protective step for the well being of the family.

In conclusion, it appears ISPO take a very stringent and narrow approach when considering rulings against the press, and cases which involve the accused’s relatives bear no exception to this rule. ISPO, at its core, appears to reflect the view of the court and protect the public interest and the need for freedom of expression, rather than individuals privacy or well being. It therefore seems a stretch for them to declare they ‘support those who feel wronged by the press’; as they rarely believe any wrong has occurred. If this is right depends on ones perspective; however it seems harsh in cases such as Elena Couzin’s where no role has been played in the crimes committed, yet you are constantly considered alongside them.

This article was written and submitted to TTP and is published with permission and thanks to the author, Freyja McLoughlin.

Top 10 Defamation Cases 2021: a selection – Suneet Sharma

Inforrm reported on a large number of defamation cases from around the world in 2020.  Following my widely read posts on 2017,  2018,  2019 and 2020 defamation cases, this is my personal selection of the most legally and factually interesting cases from England, Australia and Canada from the past year.

Please add, by way of comments, cases from other jurisdictions which you think should be added.

  1. Fairfax Media Publications Pty Ltd; Nationwide News Pty Limited; Australian News Channel Pty Ltd v Voller [2021] HCA 27

The controversial finding of the majority of the High Court of Australia that news organisations were publishers of third-party comments on their Facebook pages.

Mr Voller brought defamation proceedings against a series of media organisations alleging that each of the applicants became a publisher of any third party comment on its Facebook once it was posted an read by another user. He was successful at first instance and the successive appeals against the finding was rejected.  The position was summarised as follows

“each appellant intentionally took a platform provided by another entity, Facebook, created and administered a public Facebook page, and posted content on that page. The creation of the public Facebook page, and the posting of content on that page, encouraged and facilitated publication of comments from third parties. The appellants were thereby publishers of the third-party comments” [105].

Inforrm had a post about the decision.

The Australian Government are already proposing to reverse the effect of this decision by statute – see the Inforrm post here.

  1. Lachaux v Independent Print Limited [2021] EWHC 1797 (QB)

In the latest instalment in the long running saga of the Lachaux libel litigation, Mr Justice Nicklin dismissed the Defendants’ public interest defence and ordered the publishers of The Independent, The i and the Evening Standard newspapers to pay £120,000 in libel damages to aerospace engineer Bruno Lachaux. The defendants falsely alleged he had, amongst other things, been violent, abusive and controlling towards his ex-wife, that he had callously and without justification taken their son away from her, and that he had falsely accused his ex-wife of abducting their son.

The Judge provided important commentary on the standards to be upheld by defendants seeking to establish the public interest defence to what would otherwise be considered defamatory coverage.  He said:

I have no hesitation in finding that it was not in the public interest to publish [Articles], which contained allegations that were seriously defamatory of the Claimant, without having given him an opportunity to respond to them. The decision not to contact the Claimant was not a result of any careful editorial consideration, it was a mistake …journalists and those in professional publishing organisations should be able to demonstrate, not only that they reasonably believed the publication would be in the public interest, but also how and with whom this was established at the time…

Informm had a case comment as did, 5RB.

The saga has not yet concluded.  The defendants have been granted permission to appeal and their appeal will be heard by the Court of Appeal on 12 April 2022.

3. Hijazi v Yaxley-Lennon[2021] EWHC 2008 (QB)

A case concerning a short altercation between two pupils on the playing field of Almondbury Community School in Huddersfield. A video was taken of the incident which subsequently “went viral”, just after the perpetrator of the altercation was expelled from school. He later received a caution for common assault for the incident.

On 28 and 29 November 2018 Mr Yaxley-Lennon used his Facebook account to post two videos of himself giving his opinion on the incident. He suggested, contrary to narratives emerging from media coverage of the altercation, that some of the sympathy toward Mr Hijazi (the claimant) were undeserved as he had committed similar violence.

Both videos were found to be defamatory of Mr Hijazi

In finding for the claimant after the substantive trial, Mr Justice Nicklin stated:

“The Defendant’s allegations against the Claimant were very serious and were published widely. The Defendant has admitted that their publication has caused serious harm to the Claimant’s reputation. The consequences to the Claimant have been particularly severe. Although it was media attention on the Viral Video that first propelled the Claimant (and Bailey McLaren) into the glare of publicity, overwhelmingly that coverage (rightly) portrayed the Claimant as the victim in the Playing Field Incident. The Defendant’s contribution to this media frenzy was a deliberate effort to portray the Claimant as being, far from an innocent victim, but in fact a violent aggressor. Worse, the language used in the First and Second Videos was calculated to inflame the situation. As was entirely predictable, the Claimant then became the target of abuse which ultimately led to him and his family having to leave their home, and the Claimant to have to abandon his education. The Defendant is responsible for this harm, some of the scars of which, particularly the impact on the Claimant’s education, are likely last for many years, if not a lifetime.”

There was an Inforrm Case Comment

4.  Abramovich v Harpercollins Publishers Ltd & Anor [2021] EWHC 3154 (QB)

Chelsea FC owner Roman Abramovich succeeded at a preliminary issue trial on meaning. Mrs Justice Tipples found that all nine of the meanings of allegations relating to Abramovich’s purchase of Chelsea FC “on the directions of President Putin and the Kremlin” were defamatory.

The case concerned a claim of defamation against Catherine Belton and publisher Harper Collins of allegations made in the her book, Putin’s People: How the KGB Took Back Russia and Then Took On The West.

5.   Vardy v Rooney [2021] EWHC 1888 (QB) Inforrm Case Comment

Known as the “Wagatha Christie litigation” this concerned a claim of defamation brought by Rebekah Vardy against Coleen Rooney. The case stems from series of statements published by the defendant on her public Instagram account. Mr Justice Warby, previously found that the statements meant:

Over a period of years Ms Vardy had regularly and frequently abused her status as a trusted follower of Ms Rooney’s personal Instagram account by secretly informing The Sun newspaper of Ms Rooney’s private posts and stories, thereby making public without Ms Rooney’s permission a great deal of information about Ms Rooney, her friends and family which she did not want made public.

This part of the litigation concerns the claimants attempts to strike out and claim summary judgment. A number of paragraphs of the Amended Defence were struck out in relation to allegations of the claimants’ publicity seeking behaviour.

  1. Nettle v Cruse [2021] FCA 93

Sydney based plastic surgeon Dr Nettle refused to operate on Ms Cruse. Cruse posted comments which were highly defamatory of Dr Nettle throughout 2018. This included creating a website in the URL of Dr Nettle’s name. Allegations ranged from failing to keep records confidential to performing unauthorised surgeries. The court found in Dr Nettles favour concluding:

“Dr Nettle has proved that he was defamed by Ms Cruse in four publications in 2018.  Judgment will be entered for Dr Nettle with damages payable by Ms Cruse assessed at $450,000.  Injunctions restraining Ms Cruse from republishing the four impugned publications, or the imputations which have been found to be conveyed by them, will be made permanent.  Ms Cruse will also be ordered to pay Dr Nettle’s costs of the proceeding.”             

  1. Webb v Jones [2021] EWHC 1618 (QB)

A libel claim arising from Facebook postings. The claimant failed to comply with the pre-action protocol and failed to provide particulars of publication context in her pleading until three months after service of the Claim Form.  The defendant’s application for strike out in this case was successful.  The case provides useful guidance on the procedural niceties of conducting a libel claim. Inforrm has a case comment. 

  1. Corbyn v Millett [2021] EWCA Civ 567

The respondent issued defamation proceedings against Jeremy Corbyn in respect of an interview he gave on the Andrew Marr Show in which he had referred to people in the audience as “Zionists” who “don’t understand English irony”.  Saini J held that this made a defamatory allegation of fact.  Mr Corbyn, appealed.  Warby LJ held that the judge did not err in finding that the words ‘disruptive’ and ‘abusive’ were statements of fact?  The appellant was “presenting viewers with a factual narrative”.  He also held that the Judge’s approach to  ‘bare comment’ had been correct and there was no error of law in the finding that imputation were defamatory at common law?

  1. Greenstein v Campaign Against Antisemitism [2021] EWCA Civ 1006

A libel claim against the Campaign Against Antisemitism after the Campaign referred to Greenstein in a series of five articles published on its website. The appeal was against an order striking out particulars of malice and judgment entered into in favour of the Campaign. In upholding the first instance decision, Dingemans LJ reiterated the principles to finding malice from Horrocks v Lowe [1975] AC 135.

  1. Chak v Levant2021 ABQB 946

Rebel Media founder Ezra Levant, was ordered to pay damages of $60,000, following Leonard J finding he defamed a political science professor and former Liberal candidate during a 2014 Sun News broadcast. Levant claimed Farhan Chak “shot up” a nightclub when he was 19 years old.

Citation: INFORRM Blog, ZXC v Bloomberg LP: Privacy and Reputational Harm – Jeevan Hariharan

The INFORRM Blog has an excellent post on the inter-related nature of privacy and reputational harms.

Whether an individual has a reasonable expectation of privacy that outweighs the public interest in cases where there has been an investigation, but no charge, by the police is an imminent case before the Supreme Court in the case of ZXC v Bloomberg LP.

The case is before the UK Supreme Court on 30 November and 1 December next week and was cited by Hariharan in his analysis of the proximity between privacy and reputational harms.

The Court of Appeal judgment can be found here. The Court found that there could be a reasonable expectation of privacy in the fact of a police investigation. This builds upon notable caselaw such as the Cliff Richard case.

The Murray factors applied to the Meghan Markle case – when is there a reasonable expectation of privacy?

The England and Wales privacy of Murray v. Associated Newspapers [2007] EWHC 1908 (Ch) set out a number of criteria applicable to establishing whether there was a reasonable expectation of privacy in the matter at issue. This is one of the two part test for an action of misuse of private information to be made out.

The recent Markle case for misuse of private information applied the Murray criteria in by rote. The circumstances in which a publicised letter to the claimant’s father breached a reasonable expectation of privacy were broken down in a illustrative way, highlighting the effectiveness of the Murray criteria:

Factor One: Role and Status

(1) The claimant was a prominent member of the Royal Family,
and in that sense a public figure, who had a high public profile, and about whom much
had been and continued to be written and published; this is an important feature of the
background and the circumstances but

Factor Two: Was the nature of the activity she was engaged with private?

(2) the nature of the “activity” in which she had
engaged was not an aspect of her public role or functions; she was communicating to
her father about his behaviour, its impact on her, her feelings about it, and her wishes
for the future; and

(3) she was doing this in a letter sent to him alone, privately, by
means of a courier service.

Factor Three: What was the intrusion complained of?

(4) The “intrusion” involved the publication of much if not
most of the information in the Letter by way of sensational revelations over four pages
of a popular newspaper and online, to a very large readership; and that, in broad terms,
was the purpose of the “intrusion”.

Factor Four: Was there any consent to the intrusion?

(5) There was no consent, and it is beyond dispute
that this was known to or could have been inferred by Mr Markle and the defendant.

Factor Five: What was the impact of the disclosure?

(6) The unwanted disclosure was likely to cause the claimant at least some distress,
especially as it was done with the co-operation of her father, and in the context of a
detailed and critical response by him to the content of the Letter.

Factor Six: How was the information obtained?

(7) The information
was given to the defendant by the claimant’s father.

Mail on Sunday settle with Duke of Sussex, Prince Harry, over allegations regarding “distancing” from the British Armed Forces

A unilateral statement open court was presented before Justice Nicklin in the case bought by the Duke of Sussex against the Mail on Sunday.

The settlement concerns an article published on 25 October 2020 that alleged that the Prince had distanced himself from the British Army and the Royal Marines in particular ignoring correspondence from Lord Dannatt, a former Chief of the General Staff.

The Mail on Sunday and the MailOnline admitted the falisity of the statements.

The Statement recounted the Duke’s continuing efforts to engage with the British Armed Forces including the Royal Marines.

It highlighted that the article has remained published for 33 days, all the while disparaging the Duke’s relationship with the British Armed Forces.

A settlement offer was made to the Duke on 3rd December 2020 and accepted on 21st October 2020. Am apology to be placed in the Corrections and Clarifications columns was agreed.

As is typical with these statements attention was drawn to the fact that the intention was to settle the case and prevent further costly litigation. It was stated that the damage caused by the article in relation to these reparations was disproportionate.

The correction was published in the Mail on Sunday an area of the paper far smaller than the original article and in a right hand page which garners significantly more attention. There was no heading to the apology.

The MailOnline published a similar correction and clarification the garnered 9 shares compared to the 1,000 shares and 3,000 reader comments on the original article. The apology was also only published on the MailOline app for a period of 24 hours despite 64% of the readership having used the app to read articles, meaning a significantly less number of readers would have read the apology.

Importantly both Defendants were alleged to have used wording which significantly underplayed the seriousness of the complaint. Further they failed to acknowledge the statements were false meaning the Duke had to resort to a Statement in Open Court.

The Defendant had offered to donate the proceeds of the settlement to the Invictus Games Foundation. However, the apology did not state the Duke has decided to donate the settlement monies to the Invictus Games Foundation after receiving them himself so he could feel that some good had come of the case.

See coverage of the settlement on:

Inforrm

Sky

Independent

BBC

Top 10 Defamation Cases 2020

In 2020 there were many significant defamation cases from across the United States, United Kingdom and Australia. These cases provided prominent forums for defamation cases and facilitated for significant development, analysis and application of the law.

  1. Depp v News Group Newspapers [2020] EWHC 2911 (QB) 

The highly publicised libel trial of Johnny Depp against the publisher of the Sun newspaper. The action came following the publication of an article characterising Depp as “wife beater Depp”.  It was concluded: 

“The Claimant has not succeeded in his action for libel. Although he has proved the necessary elements of his cause of action in libel, the Defendants have shown that what they published in the meaning which I have held the words to bear was substantially true.”    

There was an Inforrm case comment. Coverage from news outlets was also predictably broad with the IndependentNews.au and the Sun itselfDepp is reported appealing the finding.    

  1. Serafin v Malkiewicz & Others  [2020] 1 WLR 2455  

An action for libel and misuse of private information in respect to an article published in October 2015. The Supreme Court here provided guidance on s.4 of the Defamation Act 2020, the public interest defence. The case is also significant due to the rare instance of the UK Supreme Court ordering a full retrial in the case, concluding that “the justice system has failed both sides” with “deep regret” and “a degree of embarrassment in relation to respected colleagues” in the Court of Appeal. There was an Inforrm case comment and a comment from 5RB Chambers.  

  1. Gubarev v Orbis Business Intelligence Ltd [2020] EWHC 2912 (QB) 

A defamation trial concerning the publication of an article on Buzzfeed alleging that the claimants took actions to undermine the democratic party leadership throughout March-September 2016. It was not established that the defendant was responsible in law for the publication of the publication complained of.  There was an Inforrm case comment

4. Vardy v Rooney [2020] EWHC 3156 (QB) 

A preliminary trial as to meaning following Ms Rooney’s statement on her Instagram account that she had identified who was leaking details of her personal life to the Sun. There was an Inforrm case comment. As expected the case drew a media frenzy with commentary from the MetroCNNTelegraphDaily Mail and INews.   

  1. Campbell v Dugdale [2020] CSIH 27  

A case in First Division, Inner House of the Court of Session. The case concerns allegations that a tweet made by the claimant was homophobic. The then Leader of the Scottish Labour Party described the tweets as “homophobic” and described the author as “someone who sprouts hatred and homophobia towards others”. It was affirmed that the defence of fair comment was applicable here and the appeal was dismissed. Brodies LLP has a case comment.  

  1. 1704604 Ontario Ltd. v. Pointes Protection Association; Bent v. Platnick   

These two cases analysed anti-SLAPP legislation in Ontario providing a detailed review of the language of the legislation and how it ought to, theoretically, be applied. Plantick involved the application of these principles with the 5:4 split suggesting that there remains a high degree of judicial discretion at play in the application of Ontario anti-SLAPP legislation. There was an Inforrm case comment.  

7. Herron v HarperCollins Publishers Australia Pty Ltd (No 3)[2020] FCA 1687 

The case concerned allegations made in a book written by journalist Steve Cannane, published in 2016, which concerned the Church of Scientology in Australia. The Claimants sued for defamation over the book’s contents, despite the issues raised having been found against them by an enquiry 30 years previously. The case covered determinations of many factual matters and ultimately the claimants were unsuccessful. There was a  5RB news item

  1. Rush v Nationwide News [2020] FCAFC 115  

The Newspapers failed attempt to appeal against the original finding in the Geoffery Rush defamation case from last years list, this concerned the assessment of the award of damages made by the Court. The award of $2,872,753.10 to Mr Rush was upheld. The case was covered by the BBC.  

  1. Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102.  

A finding that establishes that media companies can be considered publishers of comments made by readers on their social media accounts. This means media companies can be held responsible for responses to media they post. The Court of Appeal majority in the case concluded: “it is not uncommon for persons to be held liable for the publication of defamatory imputations conveyed by matter composed by another person”.  

There was an Inforrm comment on the case. 

  1. Higgins v Irish Aviation Authority [2020] IECA 157.   

A €387,000 defamation award by a jury to an Aer Lingus pilot against the Irish Aviation Authority (IAA) has been cut to €76,500 by the Court of Appeal. Mr Justice Donald Binchy, on behalf of the three-judge COA, found the appropriate sum for general and aggravated damages was €76,500.  There were pieces in The Irish Examiner and the Sunday Times. There was a discussion on the Ronan Daly Jermyn website

Top 10 Defamation Cases 2019

Happy New Year readers!

This year we again are publishing our thoughts on the Top 10 Defamation cases of the year.

This covers the top 10 defamation cases jurisdictionally from across the UK, US, Canada, Australia and New Zealand.

Case will be ranked on the strength of the precedence they set, including thier impact on the jurisdictions legal framework.

Many thanks to INFORRM for orginally agreeing to post this article.

Determining the meaning of a statement in defamation proceedings before the Supreme Court – Stocker v Stocker [2019] UKSC 17

The Supreme Court has heard a case on establishing the meaning of the statement “he tried to strangle me”. The case concerned and exchange between Mrs Stocker and an Ms Bligh (then Mr Stocker’s partner) on Facebook in which Mrs Stocker alleged that Mr Stocker tried to strangle her.

In this context, Mrs Stocker also alleged that Mr Stocker had been removed from the house following issuing threats against her, that there were some “gun issues” and that the police had determined he had breached a non-molestation order. Continue reading

Defamation

Defamation seeks to protect the individuals’ reputation from false statements which harm or may harm it. Slander and libel (more permanent forms of communication) refer to a statement publicized to a third party which has or is likely to cause serious harm to their reputation.

Defamation is a construct of the common law, built up over a series of legal cases. Defamation cases have been held to extend to social media, such as to tweets made by Katie Hopkins to food writer Jack Monroe.

Thornton v Telegraph Media Group Ltd [2011] EWHC 159 (QB) highlighted that defamation claims often cross the threshold to engage Article 8 privacy rights. In particular, the European Court of Human Rights has ruled that:

“In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life…”

Claimants have to show the statement at issue is likely to cause serious harm to their reputation per s.1 Defamation Act 2013. This is typically via evidence such as circulation, subscribers and views of the statement at issue.

The defenses available to defamation are:

  1. Truth: That the statement itself was substantially true.
  2. Honest opinion: That the statement was one of opinion and that an honest person could have reasonably held that opinion.
  3. Public interest: That the matter was one which was in the public interest and the publisher of the statement reasonably believed it to be so.
  4. Privilege: This can be absolute (such as a Parliamentary statement) or qualified (e.g. job references). Qualified privilege does not protect the publisher of a statement where it was done so maliciously.

Citation: INFORRM, Top 10 Defamation Cases of 2018: a selection – Suneet Sharma

A recent piece considering the most significant defamation cases over the previous year. Thanks goes to the INFORRM blog for their assistance.

Inforrm's Blog

Inforrm reported on a large number of defamation cases from around the world in 2018.  Following the widely read post on 2017 cases, this is my selection of the most legally and factually interesting cases from Australia, New Zealand, Canada, United States and England from the past year. 

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