New Media and Communications List
On 1 October 2019, the Civil Procedure Rules will be amended to create a new formally designated specialist Media and Communications list in the Queen’s Bench Division. From this date onwards all High Court claims that include a claim for defamation, misuse of private information, data protection and/or harassment by publication must be issued in the new list. New procedural rules will also apply to media and communications cases, including a pre-action protocol. This development reflects the growing increase in media claims in the Courts, after the decline of past decades.
The golden era of libel
At the start of this century, I trained at Carter-Ruck and Partners, a law firm that was at the forefront of the golden era of libel claims in the late eighties. The iconic Peter Carter-Ruck’s name was synonymous with libel law in this country and almost all defamation trials were decided by juries. Libel damages were very generous and well exceeded the levels of personal injury awards. A jury awarded £1.5million damages to Lord Aldington for allegations that he was a war criminal contained in a leaflet which was read by fewer than 200 people. In 1993 Elton John received damages of £350,000 for an article in the Sunday Mirror which described him as spitting out food whilst he ate. In this heyday of libel claims, London was nicknamed the ‘Libel Capital of the World’ because the legal process and damages awards in England and Wales were so favourable to Claimants. This led to ‘libel tourism’ where Claimants from other countries opted to pursue their defamation claims here due to the increased prospect of recovering sizable a damages pay-out.
The decline of libel claims
Eventually, as a result of the growing trend towards extravagant libel damages awards, the Court of Appeal exercised its power to decrease jury awards held to be ‘excessive’ and developed guidance for juries on levels of libel damages. Amongst other cases, the Court of Appeal reduced the damages award payable to Elton John by the Sunday Mirror in 1997.
And so, the golden era of libel came to an end. Damages for defamation claims were significantly decreased by the Courts and fewer defamation claims were issued in general. Towards the start of the second decade of the 2000s, traditional libel law firms were forced to diversify and/or downsize as defamation claims were on the decrease.
The Defamation Act 2013
The passing of the Defamation Act in 2013 looked set to reduce the number of defamation claims further by introducing a number of defendant-friendly measures. The Act formalised the requirement of ‘serious harm’ to weed out trivial claims so that a Claimant could only bring a claim if the publication ‘has caused or is likely to cause serious harm to his/her reputation’. Further, for a company to sue for defamation it needed to prove serious financial loss. The new legislation restricted ‘libel tourism’ by only allowing libel claims against a non-EU citizen where the Court is satisfied that England and Wales is the most appropriate forum. The Act also reversed the presumption towards jury trials for defamation claims. The limitation period for online publications was also reduced to one year after the first publication by the same publisher, instead of being one year from when the article was last accessible online, provided the subsequent publication is not materially different from the original. These measures all reduced the scope for bringing defamation claims.
Upturn in defamation claims
However, despite these restrictions, recent Ministry of Justice figures suggest that, in practice, the Defamation Act 2013 has not reduced the number of claims brought and that defamation claims are now actually on the increase. In fact, the judicial statistics for 2018 show a substantial rise in the number of issued defamation claims, with 265 claims in London. This figure represents a proportion of Queen’s Bench claims that is comparable to the proportion of claims issued in the heyday of libel.
The reason for this significant upturn must, at least in part, be due to the dramatic expansion in the past decade of online content and digital communications. The availiabity of social media, online articles, blogs and comment sites and electronic communications has generated a significant increase in internet defamation actions. It has become very easy for any individual to become an instant online publisher and for their content to reach a large audience fast. As the number of new internet users increases year on year, so the number of defamatory statements published is also likely to continually increase as new technologies expand and advance. Even though dramatic jury trials and extravagant damages awards are now a thing of the past, the libel claim is very much alive and well and has adapted to fit modern forms of communication and connectivity.
Media and Communications claims
Defamation is only one of the causes of action that will fall under the new Media and Communications list. In this digital age, the laws of defamation, misuse of private information, data protection and harassment, breach of confidence and malicious falsehood by publication have all become increasingly relevant and are now brought together under the bracket of the Media and Communications list. The development of the internet and social media has increased the application of all of these causes of action in the context of online publications.
The designation of a specialist Media and Communications list acknowledges that such claims are specialist areas of law requiring specialist Judges. It is also clear that in formalising this List the Court is recognising that media and communications actions represent a substantial and growing body of claims of increasing relevance in today’s world.
Laura Baglow is head of NetRights, the Social Media, Internet and Media Law department of Parnalls Solicitors. For legal advice and assistance about unauthorised online defamation please contact firstname.lastname@example.org or telephone 01566 772375. Find out more about NetRights here.
The contents of this article are for purposes of general awareness only and do not constitute legal or professional advice.