On 7 June 2018, the Ministry of Justice released judicial statistics for 2017, revealing a 40% increase in issued defamation claims over the previous year. Journalists of a certain age will understand immediately what I mean when I ask: does this mark a return to the George Carman libel years? Maybe not, but it’s clear that the death of libel which many had predicted when the Defamation Act 2013 came into force, was greatly exaggerated.
When the Act came into force (on 1 January 2014), it brought with it the new statutory test of ‘serious harm’. To succeed in a claim, individual claimants now have to show that the publication in question “has caused or is likely to cause serious harm” to their reputation. For “bodies that trade for profit”, the test is a step higher, requiring them to prove that they have suffered, or are likely to suffer, serious financial loss. This new test, some predicted, would be the end of defamation claims.
In fact, the test was not quite so radical as that, because a similar threshold had already been established by the courts before the implementation of the 2013 Act. Under that test, a claimant had to pass a “threshold of seriousness, so as to exclude trivial claims“. Nonetheless, the new statutory test was expected to reduce the number of defamation claims.
Not so, say the statistics. The recent figures show that in 2017, 156 defamation claims were issued in London, the home of the majority of defamation claims. This is an increase from 112 in 2016 and 135 in 2015, the highest figure since 2014 when the courts saw 227 issued claims.
The statistics, of course, only relate to claims actually issued in the courts and we have no way of quantifying the number of defamation complaints which never reach that stage, being resolved in correspondence. The serious harm test has certainly provided an answer to many of those complaints.
The statistics only relate to issued defamation claims; as yet, there are no statistics available for other claims issued against the media, for example under data protection or for misuse of private information.
Plans are afoot to record these statistics, and it is anticipated that these figures would show an increase in data protection claims with a media focus. This would certainly reflect the pattern we are seeing in practice for publishing clients, data protection increasingly appearing in both complaints and claims. Anecdotally, data based claims and complaints appear to have increased since the implementation of the GDPR on 25 May 25, and increasing awareness of the regime, with subject access requests and misplaced ‘right to be forgotten’ requests increasingly landing at publishers’ doors.
Privacy claims also continue to be issued. Statistics released by the Ministry of Justice earlier this year reveal there were 14 applications for interim privacy injunctions, eleven of which were granted. This was again an increase from 2016, when only six applications were recorded. Many of the published decisions have involved businessmen, demonstrating that privacy is not just a celebrity cause of action.
So what do all these statistics mean? It’s impossible to be certain, but it is possible that the spike in libel claims is generated by social media. Though the world of social media remains largely unregulated and anonymised, it appears that there is an increasing trend which sees individuals litigating against those who, whether out of ignorance or malice, write and publish defamatory material.
In one sense this is good news. If true, it suggests that professional, responsible, journalists are no longer being targeted.
But it would be wrong for journalists to be complacent. The number of libel complaints appears to be as high as ever, and just because complaints are not translated into claims, is no reason to conclude that everything in the libel garden is rosy.
As ever, accuracy, understanding, and professionalism make all the difference. The best way of dealing with a libel claim still remains ensuring it can’t be made in the first place.