In this final part of four posts by Timothy Pinto of Taylor Wessing, assessment is provided on further key provisions of the Defamation Act 2013. These are the single publication rule, action against a person not domiciled in the EU, the presumption of trials by judge, and publication by losing defendants of a summary of the court’s judgment. Part 1 was on “Serious Harm, Truth and Honest Opinion“, Part 2 on “Public Interest and Privilege” and Part 3 on “Intermediary liability“

Single publication rule (section 8)

The limitation period for defamation claims is one year from the date on which the cause of action accrued. The 2013 Act establishes a single publication rule which should prevent, amongst other things, indefinite liability for online publications, including internet archives. Thus, the limitation period should be one year from the date of first publication of the article. In particular, the section applies if a person:

a)     publishes a statement to the public (“the first publication”), and

b)     subsequently publishes (whether or not to the public) that statement or a statement which is substantially the same.

The rule is that

“any cause of action against the person for defamation in respect of the subsequent publication is to be treated as having accrued on the date of the first publication”.

But this

“does not apply in relation to the subsequent publication if the manner of that publication is materially different from the manner of the first publication”.

The key issue will be whether the manner of the subsequent publication is materially different. Factors the court may take into account include “the level of prominence” and “the extent of the subsequent publication”. Examples of cases where the section will need to be considered include:

• a new link to a news article, in the publisher’s internet archive;
• a repeat of a broadcast;
• an old obscure article becoming very widely read after a newsworthy event takes place and/ or the article gets tweeted around the world;
• a new edition of a book.

On the wording of the Act, the single publication rule only appears to help a person who published both the first and the subsequent publication. It does not seem to apply to a second person who publishes the same statement for the first time. In other words, if a different website owner or broadcaster re-publishes / re-broadcasts old material, then they cannot seemingly rely on the rule since they are not the person who published the first publication.

Action against a person not domiciled in the EU (section 9)

To help prevent certain libel tourists litigating in England, the 2013 Act gives the court power to refuse jurisdiction unless it is satisfied that England is the most appropriate jurisdiction.

The provision applies to actions for defamation against a person who is domiciled outside the EU, Iceland, Norway and Switzerland. The Act states that

“a court does not have jurisdiction to hear and determine an action … unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement”.

This appears to mean, for example, that a person could not bring a libel action against a US media defendant over publication in a US newspaper (which is also read in England), unless England is clearly the most appropriate place to sue. In such a case, the court would likely consider that the claimant could sue in the US, particularly if the number of English readers is far less than US readers.

But an important factor may be the place where the claimant has a reputation. If the claimant is an American (perhaps hoping to take advantage of England’s more claimant-friendly laws than in the US), then the English court is likely to strike out the claim. But if the claimant is English and living in England (without a particular reputation in the US), then it may be that the court might seize jurisdiction on the basis that the claimant’s reputation has been damaged in England and not in the US. It appears from the wording of section 9 that if the court is in doubt, then it should refuse jurisdiction on the basis that England is not “clearly the most appropriate place”.

Interestingly, the Act also provides that

“references … to the statement complained of include references to any statement which conveys the same, or substantially the same, imputation as the statement complained of”.

This appears to mean that if substantially the same imputation had been made in e.g. the US by a defendant domiciled in the US, the court may take into account that the claimant might have more appropriately been able to take action against the defendant in the US, rather than England even if the later publication by the same defendant is only in England.

Trial to be without a jury unless the court orders otherwise (section 11)

The 2013 Act will remove the presumption that defamation cases shall be tried with a jury in the Queen’s Bench Division. The position under the new law will likely be that a defamation action “shall be tried without a jury unless the court in its discretion orders it to be tried with a jury”: s.69(3) Senior Courts Act 1981.

The result overall is likely to be that most defamation actions can be determined quicker, more efficiently and at less cost. This is because the court does not need to leave issues for a jury to determine (e.g. a meaning which is capable of being defamatory) and can instead make an early determination of the actual meaning. The early determination of meaning and other issues can help parties more quickly assess their chances of winning, without waiting for a jury to decide.

Power of court to order a summary of its judgment to be published (section 12)

The Act gives the court power, if the claimant wins, to order the defendant to publish a summary of the judgment. The legislation also states that:

• The wording of any summary and the time, manner, form and place of its publication are to be for the parties to agree.
• If the parties cannot agree on the wording, the wording is to be settled by the court.
• If the parties cannot agree on the time, manner, form or place of publication, the court may give such directions as to those matters as it considers reasonable and practicable in the circumstances.

Defendants are likely to be reluctant about giving prominence to the summary and there are likely to be disputes about the positioning and wording of the summary. On the “time, manner, form and place of publication”, the court can only give “directions”. It is not clear if the court can actually order these four things (as it can for the wording of the summary) if the parties cannot agree.

For defendants who are not publishers or broadcasters, it is not clear where they would publish a summary if ordered to do so. It may be that a claimant seeks publication of the summary in a relevant trade magazine or a local or national newspaper, whereas the defendant would argue that publication of the summary should not be ordered at all.

Timothy Pinto is Senior Counsel in the Trade Marks, Copyright & Media team at Taylor Wessing. This blog post has been reproduced from the article ‘Defamation Act 2013 – Taylor Wessing Analysis

Background

The applicant had been arrested for being drunk while in supervision of a 2 ½ year old daughter, April 2012. Although not identified in the judgment, it is now clear that the applicant was Tess Gandy, a 35 year-old Labour Councillor and ex- barrister.  She had been convicted of a similar offence 6 months earlier. When arrested at a supermarket her blood level was 4 times higher than the legal driving limit. Under the Licensing Act 1902, anybody found drunk in a public place while in charge of a child apparently aged less than seven ‘may be apprehended’. It is a summary offence with a maximum penalty of a month in jail. The Magistrates Court fined Ms Gandy £100 after an admission of guilt at a hearing in May last year, after which she applied for reporting restrictions on the case, through an order under Section 39 of the Children and Young Persons Act 1933. Such orders are intended to protect children from incurring damage through being exposed through the media, and the magistrates, for lack of evidence that the publication of Ms Gandy’s name would affect her child, refused to grant such an order. Ms Gandy application for judicial review of the Magistrates’ decision, was heard by the Administrative Court on 26 March 2013 by Pitchford LJ and Kenneth Parker J.

Judgment

In giving the leading judgment, Kenneth Parker J noted that the legal adviser had correctly told the Magistrates “You do not need to consider the impact on the defendant for a section 39 order. You only need to consider the impact on the child, and she is only 2½ years of age.” The applicant had failed to provide any evidence relating as to how her daughter would be adversely affected by her name being published by the press. No case law had been presented before the court in support of Gandy’s application and no reference was made to any breach of her Human Rights.”

Kenneth Parker J identified three issues

1)   For the purposes of section 39 of the Children and Young Persons Act 1933, was B a child “concerned” in the relevant criminal proceedings against A, on the footing that she was a child “in respect of whom” the relevant proceedings were taken?

2)   If B was a child “concerned” in the proceedings, what were the relevant considerations that the magistrates had to take into account in deciding whether to make an order under section 39, and in deciding what precise restrictions, if any, should be imposed?

3)   On the material before them and in the light of relevant considerations, did the magistrates in this case reach a decision, which was reasonably open to them, and/or did the magistrates in any event reach the correct decision?

 On the first issue, Kenneth Parker J accepted that a broad view should be taken of section 39:

 “It is plain that the legislature in enacting section 39 sought to capture, in wide language, at least the central participants in proceedings… and a narrow interpretation of section 39 would tend to defeat the main objective of protecting, where appropriate, the identity of a child or young person in that position…A broad interpretation of section 39 would now also be supported by article 8 of the European Convention of Human Rights (“ECHR”) and the jurisprudence emphasising the best interests of children as a primary consideration”

On the second issue Kenneth Parker J recognised that the application of Section 39 engages the competing principles of privacy of family life and the welfare of the child on one hand, and freedom of the press and ‘the requirements of open justice’ on the other. He cited Tugendhat J in A(A Child) v Cambridge University Hospital NHS Foundation Trust [2011] EWHC 454 (QB) [11]  where it is stated “by virtue of the Human Rights Act 1998, the court, as a public authority, must take account of these competing principles where they become engaged, as in the case of the application of section 39.”

However, Kenneth Parker J noted that

“this learning must, with respect, be read and understood in the context in which it is sought to be applied. It is clear that the interests of children do not automatically take precedence over the Convention rights of others…Where a tangible and objective public interest tends to favour publication, the balance may be difficult to strike. The force of the public interest will be highly material, and the interests of affected children cannot be treated as a trump card.”

He referred to JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, where the Court of Appeal again emphasised:

“Any order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large.” [21].

He then went on to consider the balancing of Article 9 and Article 10 rights on the facts of the case, noting that,

“The criminal conviction itself, although it attracted a relatively low penalty, was far from trivial. To be drunk in public in charge of a small child of 2½ years of age raises very considerable concerns regarding the general welfare of the child, especially when a caution had been administered not long before for the same offence. The caution administered in private, and the real risk of public exposure on re-offending, had plainly failed to deter A, and this strongly suggested that there might be more serious underlying problems that needed to be addressed in the interests of B.”

As the applicant was an elected councillor and her conduct had twice fallen below the standard expected ‘of an elected official’ there was an “undeniable legitimate interest in the public learning, through media publication, of how [she]… had behaved.’

The arguments in favour of a section 39 order were “far fetched and not based upon any solid empirical foundation’.  The applicant had argued due to the small size of their community there was a high risk of harm to her child because it is probable other parents would treat her unfairly in light of her mother’s misgivings. She also argued the child may come across this information in the future via media publications.  The judge described these arguments as ‘highly speculative”. As a result, he concluded that “the balance of the relevant competing principles came down firmly in favour of Article 10 and open justice, given the immediate, direct and considerable extent of the interference with those rights in the case as explained earlier, and taking due account of the much weaker, remote and uncertain impact on B’s rights under Article 8 and on her best interests”. The application was dismissed.

Comment

In reviewing the proportionality of the magistrates decision the Administrative Court had no difficulty in concluding that the right balance had been struck. While it was true the child would be identifiable if Ms Gandy’s name, position or charge were published, the balance of the relevant competing principles came down firmly in favour of Article 10 and open justice. As the Judge commented ‘the public would simply not know what A, an elected official, had done’ [23].

It is noteworthy that the Archant Community Media Limited, the publishers of the Eastern Daily Press and the Lowestoft Journal, intervened to oppose the application for anonymity.  Their position was entirely vindicated. Kenneth Parker J commented that they had a “powerful case indeed under Article 10 and the principle of open justice“.

The result of the case was that Ms Gandy resigned from as a Councillor. A Labour Party spokesman said: “We accepted Tess Gandy’s formal offer to resign as a Waveney District councillor as soon as she made it, believing it to be in her best interests and the best interests of her constituents.”

Oliver Stimpson is a law student at the City University, London

In this third part of four posts by Timothy Pinto of Taylor Wessing, he assesses the liability of intermediaries under the Defamation Act 2013.  Part 1 dealt with “Serious Harm, Truth and Honest Opinion” and Part 2 with “Public Interest and Privilege“

Operators of websites and persons who are not the author, editor or publisher of a statement complained of (sections 5, 10 and 13)

Operators of websites (section 5)

The 2013 Act does not abolish the defence under Section 1 of the Defamation Act 1996 or the hosting exemption under Regulation 19 of the E-Commerce Regulations. It adds the following defence for operators of websites under section 5:

(1)  This section applies where an action for defamation is brought against the operator of a website in respect of a statement posted on the website.

(2)   It is a defence for the operator to show that it was not the operator who posted the statement on the website.

(3)  The defence is defeated if the claimant shows that —

a)     it was not possible for the claimant to identify the person who posted the statement,

b)     the claimant gave the operator a notice of complaint in relation to the statement, and

c)     the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.

 (4)   For the purposes of [(a) above], it is possible for a claimant to “identify” a person only if the claimant has sufficient information to bring proceedings against the person.

(5)   The defence under this section is defeated if the claimant shows that the operator of the website has acted with malice in relation to the posting of the statement concerned.

(6)   The defence under this section is not defeated by reason only of the fact that the operator of the website moderates the statements posted on it by others.

The Act states that regulations must be made which determine when and how a website operator must respond to a notice of complaint (including as to taking the post down and revealing the identity or contact details of the poster). A notice of complaint includes a notice which:

a)     specifies the complainant’s name,

 b)     sets out the statement concerned and explains why it is defamatory of the complainant,

 c)     specifies where on the website the statement was posted, and

 d)     contains such other information as may be specified in regulations.

In a nutshell, subject to the regulations, it appears that a website operator will have a defence in relation to a defamatory statement posted by a third party on its site if:

a)     The claimant can identify the poster; or

b)    The operator has not received a notice of complaint; or

c)     The owner, on receipt of a notice of complaint complies with the regulations e.g. it takes down the post and/or provides the claimant with the identity or contact details of the poster.

There is likely to be litigation on what is meant by “operator of a website” and “posted on the website”. These appear to be relatively old-fashioned terms as a lot of user generated content is nowadays published via mobile platforms and apps. In addition, there are many different levels of involvement in operating a website. It seems likely that a pure ISP is not the operator of a website on which the statement complained of has been posted. Pure ISPs are more likely to try to rely on section 10 of the 2013 Act (see below), as well as section 1 of the 1996 Act and Regulation 19 of the E-Commerce Regulations..

Action against a person who is not the author, editor, etc (section 10)

In addition to the website operator defence,

“a court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher.”

This is an additional potential safe-harbour for intermediaries, such as ISPs and social media platforms. It means, for example, that if it is reasonably practicable for a claimant to sue the person who posted a comment on social media, then action cannot be taken against the social media platform (regardless of compliance under the website operator defence) or the ISP. In most cases it is likely to be practical to sue the author (if identifiable), particularly given that the courts are sometimes prepared to give permission for claimants to serve proceedings via social media platforms.

It appears that the regulations for the website operator defence will make provision about identifying the poster or giving information to enable the claimant to make a Norwich Pharmacal application against another intermediary to ascertain the poster’s identity. If this leads to nothing and/or the claimant cannot realistically take action against the poster, then it can potentially take action against an intermediary.

However, some intermediaries may not be publishers at common law at all and so would not need to rely on any of the defences (for more information. see e.g. Bunt v Tilley; Metropolitan Schools v Google and Tamiz v Google). Further or alternatively, the intermediary itself in many cases is likely to have a defence under section 5 of the 2013 Act (if it is a website owner) and under section 1 of the 1996 Act and/or Regulation 19, provided it has promptly removed the content once it has received sufficient notice.

Section 10 is not only likely to apply to those hosting social media, it also likely applies to the groups specified in section 1(3) of the 1996 Act as not being an author, editor or publisher. These include a printer, a distributor or seller of printed material (e.g. a bookshop) or the broadcaster of a live programme containing the statement where the broadcaster has no effective control over the maker of the statement. Therefore, for example, action cannot be taken against a printer or bookshop if the claimant can take action against the author, editor or publisher.

It is not clear when the court will be satisfied that “it is not reasonably practicable for an action to be brought against the author, editor or publisher”. For example, before the court will rule that an action is not practicable:

a)     Does a claimant need to have made one or more Norwich Pharmacal application before the threshold has been met?

b)    Does the fact that the author, editor or publisher is in another country make a difference and, if so, in which countries is action not reasonably practicable?

Potential boost for the UK safe-harbour for intermediaries

The combination of sections 5 and 10 of the 2013 Act, plus the section 1 defence and Regulation 19 exemption mean that potential defamation defendants who are intermediaries have been given a significant boost under English law. Whilst it will take time for the full impact of the 2013 Act to be known and the website owner defence depends on what the regulations will say, England now seems to be a more attractive and safer place to print, distribute and host third party content. The legislative combination does not go as far as s.230 CDA under US law, but English libel claimants and overseas libel tourists hoping to target intermediaries may need to take out their atlas and shop elsewhere.

Order to remove statement or cease distribution etc. (section 13)

Whether or not an intermediary is liable, the 2013 Act gives the court power to order the intermediary to remove or to stop distributing the defamatory statement. In particular, the court may order -

a)     the operator of a website on which the defamatory statement is posted to remove the statement, or

 b)     any person who was not the author, editor or publisher of the defamatory statement to stop distributing, selling or exhibiting material containing the statement.

For example, if the claimant wins against a primary publisher (e.g. the author of the post), but the intermediary is not liable, the court can still potentially order the intermediary to remove or stop distributing the offending material.

The Single publication rule, forum shopping and juries will be considered in the final part of this four part analysis of the Defamation Act 2013.

Timothy Pinto is Senior Counsel in the Trade Marks, Copyright & Media team at Taylor Wessing. This blog post has been reproduced from the article ‘Defamation Act 2013 – Taylor Wessing Analysis‘.

The paper also gives practical advice to bloggers about their rights and explains how – and in what situations – they can invoke some of the privileges and defences that traditional journalists have found vital to the integrity of their work.

Article 19 points that that the Internet has made it possible for any person to publish ideas, information and opinions to the entire world. In particular, blogging and social media now rival newspapers and television as dominant sources of news and information.

It argues that it is no longer appropriate to define journalism and journalists by reference to some recognised body of training, or affiliation with a news entity or professional body. On the contrary, Article 19 believes that the definition of journalism should be functional, that is journalism is an activity that can be exercised by anyone. Accordingly, it argues that international human rights law must protect bloggers just as it protects journalists.

The key recommendations of the paper are as follows:

In this second part of four posts by Timothy Pinto of Taylor Wessing, he considers the changes to common law and statutory privilege which will result from the Defamation Act 2013. Part 1 on “Serious Harm, Truth and Honest Opinion” can be found here.

Publication on a matter of public interest (section 4)

Reynolds privilege is abolished under the 2013 Act. Instead, it will be

“a defence to an action for defamation for the defendant to show that —

 a) the statement complained of was, or formed part of, a statement on a matter of public interest; and

 b) the defendant reasonably believed that publishing the statement complained of was in the public interest.”

In the new defence, there is no express requirement for the publisher to prove that it:

a) has met a standard of responsible journalism;

b) satisfied any or all of the Reynolds factors; or

c) acted both fairly and responsibly in gathering and publishing information.

Instead, assuming that the statement was on a matter of public interest, the issue will boil down to the defendant’s reasonable belief. In deciding this, “the court must make such allowance for editorial judgement as it considers appropriate”, as well as “all the circumstances of the case”. The defence seems on its face to be more flexible and more in favour of free speech than Reynolds. However, the court is likely to end up considering similar factors to those in Reynolds on the question of reasonable belief and we may be back to Reynolds, Jameel and Flood more or less, under a different name.

It seems likely that, where appropriate, the courts will consider that, if the defendant has not done sufficient checks and has written the article in an unbalanced and immoderate way, then it would not be reasonable to believe publication is in the public interest. It is likely that consideration of the steps taken by the defendant to verify the truth will often play a part. This is because the steps taken to verify must be disregarded from the assessment of reasonable belief in a neutral reportage situation (see below), and hence should not generally be disregarded in other cases.

It appears that the ‘reasonable belief’ will have a subjective and an objective dimension. The focus of both limbs of the defence is on the public interest, which is not defined. A crucial question is whether the English courts will adopt a moral or intellectual high ground on what is in the public interest (as the ECtHR did in its first Von Hannover decision for example) or whether they will be flexible in the context of more salacious stories. If they do the former, then the new public interest defence may be beyond the reaches of many red-top or celebrity stories. Our prediction is that the courts will apply the public interest test with flexibility but a defendant must show the court something convincing substantially beyond the tittle-tattle of footballers’ wives and girlfriends. It seems likely that scientific and academic debate will generally be considered by the courts to be in the public interest.

There is no provision stating that the defence is defeated by malice. However, this should be encompassed within the second limb of the new defence.

Neutral reportage

The 2013 Act codifies the neutral reportage part of Reynolds as follows:

“If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.”

On its face, this appears to codify the common law but as the ultimate test (reasonable belief that publishing the statement was in the public interest) is new, there may be scope for argument.

Peer-reviewed statements in scientific or academic journals (section 6)

The 2013 Act provides a qualified privilege defence for statements in scientific or academic journals if:

a)     the statement relates to a scientific or academic matter; and

b)     before the statement was published in the journal an independent review of the statement’s scientific or academic merit was carried out by—

 i)      the editor of the journal, and

 ii)     one or more persons with expertise in the scientific or academic matter concerned.

There is also a privilege for the publication:

a)     in the same journal of the assessment of the statement’s scientific or academic merit by one of the peer reviewers; and

b)    of a fair and accurate copy of, extract from or summary of the statement or assessment.

During the consultation process for the Defamation Bill, it was apparent that the scientific and academic community and their publishers were hoping for a stand-alone defence which would protect them from the chilling effect of actual, or a potential threat of, libel proceedings when discussing scientific or academic topics generally (as opposed to within the narrow confines of peer review). This defence does not achieve that and scientists, academics and their publishers will need to rely on another defence. In this regard, the combination of the ‘serious harm’ & ‘serious financial loss’ requirements and the more flexible ‘honest opinion’ and ‘publication on a matter of public interest’ defences should reduce the chill on honest scientific and academic debate to a degree (Of course, the defamation Act 2013 does not directly reduce the costs of defending a defamation claim, which is a contributing factor to any chilling effect on scientific and academic debate).

Expansion of statutory privilege (section 7)

The 2013 Act expands the absolute and qualified privileges set out in the 1996 Act. In summary, the main changes are:

a)     An extension of the privilege from reports of certain UK or EU proceedings or official documents to reports of equivalent proceedings or documents anywhere in the world.

b)    A new qualified privilege for fair and accurate reports of proceedings:

i)      at press conferences;

ii)     of scientific or academic conferences.

The main changes are set out in more detail in the table below. The table only highlights key changes. It is not a comprehensive list or description of the privileges available under the 1996 or 2013 Acts:

The expansion of the privilege to reports of public meetings and press conferences on matters of public interest anywhere in the world will be helpful for the media. It is not clear if a report of a company press release without a press conference would be included. This seems unlikely unless the press release forms part of a press conference or public meeting.

It should be remembered that the reporting must still satisfy the other conditions for the privilege to apply e.g. it must be fair and accurate, of public interest and for the public benefit and, where relevant, include a statement by way of explanation or contradiction if requested (see s.15 DA96).

The liability of intermediaries will be considered in the next and third part of this four part analysis of the Defamation Act 2013.

Timothy Pinto is Senior Counsel in the Trade Marks, Copyright & Media team at Taylor Wessing. This blog post has been reproduced from the article ‘Defamation Act 2013 – Taylor Wessing Analysis‘.

On the issue of the naming of suspects, the Guidance states that

“Decisions must be made on a case-by-case basis but, save in clearly identified circumstances, or where legal restrictions apply, the names or identifying details of those who are arrested or suspected of a crime should not be released by police forces to the press or the public. Such circumstances include a threat to life, the prevention or detection of crime or a matter of public interest and confidence. This approach aims to support consistency and avoid undesirable variance which can confuse press and public (para 3.5.2).

Although the press have campaigned against this approach it is consistent with the view expressed by Lord Justice Leveson (see our post here), the views of the Judiciary [pdf] and the views of the majority of the public (see our post here).

In relation to the terms on which police officers should speak to the media, the Guidance suggests that the police service should use the following terms (para 3.4.2):

• On the record – means all that is said can be reported, quoted and attributed. Where possible, all conversations should be on this basis and it should always be assumed that a conversation is on the record unless expressly agreed otherwise in advance.
• Non-reportable briefing – this phrase covers a background briefing which is not to be reported. It can be used to provide further context around an ‘on the record’ statement.
• Embargoed briefing – means content of the briefing can be reported, but not until a specific event or time.

The guidance was reviewed following criticism about differing approaches to releasing information by forces and is intended to ensure a professional working relationship between police and the media.

It updates police practice on “off-the-record” briefings, recording contact with the media, appropriately reporting any personal relationship between a police officer and a journalist and providing information concerning arrests to the media.

National policing lead for communications Chief Constable Andy Trotter said:

“An open, professional and strong relationship with the media is an essential aspect of the way in which the police are held to account. This guidance actively encourages police officers and staff to speak to the media about matters for which they are responsible. They should be open, honest and approachable.

“The police also have a duty to safeguard information. At times the decision between openness and confidentiality can be finely balanced. We aim to bring into the open our guidance about when someone should be named or not so that the approach is clearly understood.”

This is the first of four posts by Timothy Pinto of Taylor Wessing where he provides analysis of the key provisions of the UK’s Defamation Act 2013 and its likely practical implications under English law. 

Introduction

The Defamation Act 2013 was enacted on 25 April 2013. In summary, the Act shifts the balance, between free speech and the right to reputation, in favour of free speech. In some areas this shift is likely to be significant (e.g. the hurdle for companies wishing to sue for libel), in other areas there may be little change in practice (e.g. the truth defence). At the time of writing (9 May 2013), most of the provisions are not in force and are awaiting implementation by Statutory Instrument. As this is new legislation, what follows is only an initial view which may change as things develop.

Serious harm (section 1)

Under the 2013 Act,

“a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”

It seems likely that, rather than creating a new definition of ‘defamatory’, the serious harm requirement is setting an additional hurdle for a claimant to prove, on top of the existing examples of defamatory meaning. If so, a claimant will therefore need to show that the words complained of, for example:

 a) caused or are likely to cause serious harm to the claimant’s reputation; and

 b) tend, for example, to:

 i)              lower the claimant in the estimation of right-thinking or reasonable members of society; or

ii)             substantially affect in an adverse manner the attitude of others towards the claimant, etc.

 Most claims brought by individuals are unlikely to be affected by the serious harm threshold. This is because most defamatory statements which are disputed or litigated are clearly likely to cause serious damage to a person’s reputation, the main issue being whether the defendant can prove truth or another defence. However, it is predicted that the threshold will increase the number of cases where either the claimant decides not to take action or the defendant resists offering any remedy. Possible, examples might include where:

• The claimant has a bad reputation anyway and it is in doubt whether the claimant’s reputation would be seriously harmed over and above his or her existing (suspect) reputation;
• The claimant needs to prove an innuendo identification and the people (with the special knowledge) who would identify the claimant would not believe the words would seriously harm the claimant’s reputation (under the previous law, this would generally not prevent the meaning being defamatory);
• There is limited publication in the jurisdiction and/or the claimant is not known in the jurisdiction;
• The meaning is borderline vulgar abuse, ‘pub talk’ or a mere criticism of goods or services; or
• Any damage was transient or short-lived due to a quick retraction, clarification or apology.

It should be apparent that any of these factors may also lead to a Jameel abuse argument being deployed by the defendant. Therefore, the serious harm requirement is likely to lead to more early strike out applications by defendants on both grounds.

Bodies trading for profit

 One of the most important provisions in the 2013 Act states:

“For the purposes of this section [1], harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss”.

In practice a for-profit company is likely to need to specify in its letter of claim and Particulars of Claim that the statement:

 a) Has caused or is likely to cause the body financial loss;

 b) What that loss is; and

 c) That the loss is serious.

 If it does not specify these things, the defendant may well insist on such details before responding substantively.

 The serious financial loss requirement is likely to make it difficult for companies to sue for defamation. In practice, companies are going to be less likely to take action or even threaten to take action as a result of the new law. Defendants are more likely to be braver about criticising companies, appreciating the “serious financial loss” hurdle which companies face. This in turn is likely to lead to more actions by individuals associated with the company, e.g. the CEO or someone named in the article. They may argue that the article identified and was defamatory of them. Some officers of certain companies may argue that an allegation against the company is an allegation against them (to avoid having to prove the “serious financial loss”). But they will still need to prove serious harm – as to which see above – and the other elements a claimant has to prove.

It may be that companies will therefore prefer to take action against the press via whatever regulator is decided on, following the Leveson report, in respect of inaccuracies, rather than claiming defamation.

Truth (section 2)

Justification has been abolished in favour of a statutory truth defence. The defendant has to prove that “the imputation conveyed by the statement complained of is substantially true”. Section 5 of the 1952 Act is more or less transposed into section 2(2) of the 2013 Act with more modern language, with a reference to “seriously harm”, rather than “materially injure”, the claimant’s reputation. It seems likely that the legal principles underlying justification will probably continue to be applied by the courts

Honest opinion (section 3)

Fair comment is abolished. The honest opinion defence requires that:

a)     the statement complained of was a statement of opinion;

b)     the statement complained of indicated, whether in general or specific terms, the basis of the opinion; and

c)     an honest person could have held the opinion on the basis of —

i)      any fact which existed at the time the statement complained of was published;

ii)     anything asserted to be a fact in a privileged statement published before the statement complained of.

Importantly, under the wording of the new defence, it appears that the commentator need not know the fact upon which an honest person could have held the opinion, at the time the statement was published. If so, this would release the defence from one of the previous shackles which sometimes made it difficult for defendants to rely on. The previous requirement that the comment be in the public interest does not appear either.

One question is whether the basis of the opinion, which must be indicated in the statement, must be the same as the fact (or privileged assertion) on the basis of which an honest person could have held the opinion. The wording is not entirely clear. According to the Explanatory Notes, the third condition (c) is an objective test. There seems to be a potential conflict between stating that the basis of the opinion must be indicated in the article but not apparently insisting that the basis of the opinion be in the commentator’s mind at the time of the article. It appears, therefore, that the defence could possibly succeed where:

a)     the opinion indicates Fact A as its basis, where Fact A is in the mind of the commentator but false, and

b)    an honest person could have held the opinion based on Fact B which is true but unknown to the commentator at the time of publication.

If this is how the courts interpret section 3, the defence can protect an honestly held opinion even if the commentator has grounded it on something which is false, provided there was other true factual support for the honest opinion. Of course, if the false statement of fact, which is indicated in the article, is defamatory of the claimant, then the defendant will need to rely on another defence in relation to that untrue fact.

The defence has retained some of its ancestor’s technical nature unfortunately, but it should ultimately protect honest opinions more readily than the fair comment defence allowed. Where claimants could previously be fairly confident if an opinion piece made significant factual errors, they may, under the new law, need to ask themselves whether there is another fact or privileged statement on which an honest person could have held the defamatory opinion about them.

Malice has been simplified to “The defence is defeated if the claimant shows that the defendant did not hold the opinion”. This is likely to be difficult for a claimant to prove in most cases.

Where a publisher publishes the opinion of another person (“the author”), then “the defence is defeated if the claimant shows that the defendant knew or ought to have known that the author did not hold the opinion”.

The key privilege defences of the Defamation Act 2013 will be considered in the second part of this four post analysis.

Timothy Pinto is Senior Counsel in the Trade Marks, Copyright & Media team at Taylor Wessing. This blog post has been reproduced from the article ‘Defamation Act 2013 – Taylor Wessing Analysis‘.

]]> http://inforrm.wordpress.com/2013/05/21/defamation-act-2013-a-boost-for-free-speech-part-1-serious-harm-truth-and-honest-opinion-timothy-pinto/feed/ 2 INFORRM Defamation Act 2013 http://inforrm.wordpress.com/2013/05/20/law-and-media-round-up-20-may-2013/ http://inforrm.wordpress.com/2013/05/20/law-and-media-round-up-20-may-2013/#comments Mon, 20 May 2013 00:08:24 +0000 INFORRM http://inforrm.wordpress.com/?p=21336 ]]> Mary-Ellen Field, Elle Macpherson’s former adviser, has discontinued her phone-hacking claim against News Group Newspapers, as Media Guardian reports here and The Independent here.

Meanwhile, criminal prosecutions of New Group employees. continue.  On 14 May 2013, the CPS announced that a journalist at the Sun newspaper, a press officer at Her Majesty’s Revenue and Customs (HMRC) and his partner (not a public official) should be charged with conspiracy to commit misconduct in public office.  There was an Inforrm news item on this.

It is alleged that between 30 March 2008 and 15 July 2011 The Sun newspaper paid £17,475 to the press officer, mostly via his partner, in exchange for the unauthorised disclosure of information obtained as a result of his employment with HMRC. The full release can be found here.

In the case of Saint Paul Luxembourg SA v Luxembourg (Case No 26419/10), decided on 18 April 2013, the Fifth Section of the Court of Human Rights considered the protection of journalists against coercive court orders and held that a warrant to search a newspaper office was, in the circumstances, a violation of Article 8 and, because it was in wide terms which potentially included information about sources, it was also a violation of Article 10. Inforrm published a case comment by Hugh Tomlinson QC here.

Eoin McKeogh, who was falsely branded as a thief on YouTube, Google, Facebook and a number of websites in 2011, has secured a interlocutory injunction to permanently remove defamatory material from the internet. Judgment [PDF] was given on 16 May 2013 in the High Court in Ireland. Inforrm has a post here, with further detail and comment.

The New Yorker has launched Strongbox, an anonymous document sharing tool. It was designed by Aaron Swartz, who died in January, and Kevin Poulsen. A post explaining the tool can be found here.

Statements in Open Court and Apologies

Rached Ghannouchi, the leader of the Tunisian political party Ennahda has received an apology and substantial damages from the BBC. The broadcaster apologised in relation to an online article published in November 2012 in which “it made false claims concerning supposed links with extremist groups and threats alleged to have been made by Mr Ghannouchi to frustrate the democratic process in Tunisia“, according to a statement released by Ghannouchi’s solicitor firm Carter-Ruck [PDF].

A man has won an undisclosed out-of-court settlement from The Sun and an apology after he was wrongly identified as the child of Fred West, according to reports in the Guardian and Click Liverpool.

If there is anything to include in this section please contact inforrmeditorial@gmail.com.

Journalism and regulation

There have been a number of resolved PCC complaints but no new adjudications. Resolved cases include: Sheila Gilmore MP v The Sunday Telegraph, Clause 1, 17/05/2013; Ms Kate Fawcett v Stirling News, Clause 1, 10, 16/05/2013; Mr Graham Eggleton v Daily Echo (Bournemouth), Clause 5, 16/05/2013; Ms Honor Donnelly v Metro, Clauses 1, 3, 4, 9, 10, 16/05/2013; A man v The Sun, Clauses 1, 5, 6, 16/05/2013; A man v Daily Mail, Clauses 3, 5, 6, 16/05/2013; A man v Burton Mail, Clauses 1, 5, 6, 16/05/2013.

In Ms Carina Trimingham v The Sun, Clause 1, 16/05/2013, Chris Huhne’s partner Carina Trimingham complained about the accuracy of an article relating to Huhne’s experience in prison: she said that “there was no truth in the claims that: Mr Huhne had been summoned to breakfast over the Tannoy system; that he had been moved to a wing for vulnerable prisoners; or that other prisoners and officers had bullied him”.

The complaint was resolved the newspaper removed the item from its website and published the following correction:

In an article ‘Order Order!, the right honourable member for Wandsworth down to the office’, (13 March) we stated that a prison officer ridiculed Chris Huhne by calling him to breakfast on the tannoy system. We also reported claims by families of inmates that he had been moved to a wing for vulnerable prisoners after being bullied and badgered for money. We have been contacted by Mr Huhne and his partner Ms Carina Trimingham who say that he was not been moved or bullied and got on well with other prisoners [sic]. We are happy to set the record straight.

The BBC has apologised for a Newsnight report about military charity Help for Heroes “that gave the false impression it was responsible for shortcomings in support offered to wounded veterans“. The BBC Editorial Complaints Unit published a report here. However, the journalist who worked on the report Angus Stickler, then chief reporter of the Bureau of Investigative Journalism, stands by the report. In a statement issued by the NUJ he said: “it was well sourced, based on sound evidence and thoroughly tested. It was a brave decision for those wounded soldiers and their families to take part in the report, and they had an absolute right to be heard. These are people of great courage and integrity. We had a duty to properly report their views“.

The deputy editor of the Guardian Ian Katz has been named editor of BBC Newsnight to replace Peter Rippon, who moved from the position following events around Newsnight’s Jimmy Savile investigation.

Commentary, research & resources

• Robert Sharp, Liberty Annual Conference: Is Speech Free Online?
• LSE Media Policy Project: Is PressBoF Winning the Royal Charter Race?
• Roy Greenslade, Media Guardian: Arrests anonymity’ – is it really a denial of press freedom?
• Jack of Kent: Daniel Morgan resource page [updated]
• Peter Jukes: Daniel Morgan Murder Inquiry [extract from his book The Fall of the House of Murdoch]
• Judith Townend / Meeja Law, Survey for journalists and bloggers on legal experiences and views
• SCL, The IT Law Community – Defamation and Injunction: Google and Facebook Must Try Harder
• Freedom of the Press Foundation – Crowd-Funding A Court Reporter To Transcribe Bradley Manning’s Trial

In the Courts

The trial in Hunt v Times Newspapers concluded this week after hearings on 13, 16 and 17 May 2013. Judgment was reserved.

On 15 May 2013 there was an application in the case of Fox v Boulter before Bean J. Judgment was reserved.

On 16 May 2013 Tugendhat J heard the widely reported trial of the preliminary issue on meaning in the case of McAlpine v Bercow. Judgment was reserved.

Events

23-24 May 2013, “Social Media, Regulation and Freedom of Expression: A comparative perspective”. A workshop organized by HKBU and Tsinghua University, Communication & Visual Arts Building, Hong Kong Baptist University. Hong Kong.

23 May 2013, British Institute of International and Comparative Law: The Right to Privacy and the Freedom of the Press: From the European to Domestic Perspectives … and Back, London.

31 May 2013, Rethinking Media and Journalism Practice, University of Winchester.

4-7 June 2013, IFJ Congress 2013, Dublin.

8 June 2013, Citizen Journalism Educational Trust (CJET) and The-Latest.Com / After Leveson, is Citizen Journalism the answer? [Book here]

10 June 2013, Caught in the web: how free are we online?, Kings Place, London.

24-25 June 2013, The Constitution of the Public Sphere: the post-Leveson Landscape (W G Hart Legal Workshop 2013), Institute of Advanced Legal Studies, London.

17 September 2013, IBC Legal’s Protecting the Media 2013, London.

26-27 September 2013, Jersey Law Via the Internet 2013, Radisson Blu Hotel, Jersey.

Know of any media law events happening in the next few months? Please let Inforrm know: inforrmeditorial@gmail.com.

Media Law in Other Jurisdictions

Australia: The Lower Murray water authority has confirmed that it has appealed against the defamation judgment in the case of Belbin v Lower Murray Urban and Rural Water Corporation (see the Inforrm case note).

Germany: The Federal Court of Justice has ordered Google to remove defamatory entries from its “auto complete” function. There is a news report of the case in PC World.

Next week in the courts

On Monday 20 May 2013, the Court of Appeal (Master of the Rolls, Tomlinson and Ryder LJJ) will give judgment in the case of AAA v Associated Newspapers (heard 29 and 30 April 2013).

On Tuesday 21 May 2013 there will be a 2-3 day PTR in the case of Cruddas v Calvert.

On 23 May 2013 there will be an appeal against an order made by the Master in Subotic v Knezevic.

On the same day HHJ Moloney QC will continuing hearing an application in Kim v Park – part heard from 25 April 2013.

Next week in Parliament

Monday 20 May 2013, 2.30pm, Legislation. Offender Rehabilitation Bill [HL] – Second reading – Lord McNally, Main Chamber, House of Lords.

Monday 20 May 2013, 4.30pm – Second Delegated Legislation Committee. Subject: Draft Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 and the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013. Location: Committee Room 11, Palace of Westminster.

Tuesday 21 May 2013, 9.30am, Justice select committee (HoC). Subject: The work of the Crown Prosecution Service. Witness(es): Keir Starmer, QC, Director of Public Prosecutions, Crown Prosecution Service, Location: Room 15, Palace of Westminster.

Tuesday 21 May 2013, 10.30am, Culture, Media and Sport select committee (HoC). Subject: Regulation of the press. Witness(es): David Newell, Director, Newspaper Society, Adrian Jeakings, President, Newspaper Society, David Montgomery, Chairman, Local World, Christopher Thomson, Managing Director, D.C. Thomson & Company Ltd and Ashley Highfield, Chief Executive Officer, Johnston Press plc, Location: The Grimond Room, Portcullis House.

Tuesday 21 May 2013, 11:30am, Oral Questions – Justice, including Topical Questions, Main Chamber, House of Commons.

Wednesday 22 May 2013, 11am, Legislation – Intellectual Property Bill [HL] – Second reading – Viscount Younger of Leckie.

Wednesday 22 May 2013, 12pm, Short Debate – Media plurality in the light of the Leveson Report – Lord Sharkey.

From Wednesday 22 May the House of Commons and House of Lords will be in recess. The Houses will next sit on Monday 03 June 2013.

Judgments

The following reserved judgments after public hearings remain outstanding:

Euromoney plc v Aviation News Ltd heard 2 May 2013 (Tugendhat J)

Fox v Boulter, heard 15 May 2013 (Bean J)

McAlpine v Bercow, heard 16 May 2013 (Tugendhat J)

Hunt v Times Newspapers, heard 29 and 30 April, 1-3, 7-10, 13, 16 and 17 May 2013 (Simon J)

Also on Inforrm last week

• News: Newspaper Society “Local Editors Survey” – Unscientific and Misleading
• Hackgate – The IPCC and Surrey’s “Collective Amnesia”
• Launch of new survey on the legal experiences and views of journalists and online publishers – Judith Townend
• Nigel Evans, contempt and clues about alleged victims – David Banks
• Hackgate – Issues For The Burnton Inquiry Into The Murder Of Daniel Morgan
• Case Law, Strasbourg: Saint Paul Luxembourg SA v Luxembourg, Newspaper protected under Articles 8 and 10 – Hugh Tomlinson QC
• New Zealand media regulation reforms – Steven Price
• Case Law, Ireland: McKeogh v John Doe 1 (No.2), Facebook, Google and mandatory take down injunctions
• The press Royal Charter and the concession that never was – Gordon Ramsay

This week’s Round Up was compiled for Inforrm by Judith Townend, a freelance journalist and PhD researcher examining legal restraints on the media, who runs the Meeja Law blog. She is @jtownend on Twitter. Please send suggestions, tips and event listings for inclusion in future round ups to jt.townend@gmail.com.

The first, that initially appears more important, is that the veto simply doesn’t exist in the PressBoF Charter. Instead, it is – we are told – in the Articles of Association (never made public), and so we remain unsure whether the move from ‘qualified-majority voting’ to ‘consensus’ decision-making will in practice ensure that a co-ordinated bloc could not dominate the process.

The second problem renders the first almost completely irrelevant. The concession of the ‘veto’ is an acknowledgement that a perceived lack of independence from the industry is a shortcoming of the PressBoF Charter. However, the structure of this Royal Charter is such that industry dominance – specifically the dominance of PressBoF and its rebranded replacement, the Industry Funding Body (IFB) – is so great that a slight adjustment of the appointments process to one component of the system barely registers. The lack of the veto makes no difference when industry control of the new system is achieved by other means.

Before addressing these, however, it is worth looking more closely at PressBoF itself. PressBoF currently raises the levy on members of the PCC in order to fund the self-regulatory body. It does this through liaising with the various industry representation bodies, whose representatives make up the Board alongside delegates from those newspaper groups who launched the PressBoF Charter.

These industry bodies are: the Newspaper Publishers Association (NPA) (from where PressBoF’s Chair, Lord Guy Black of the Telegraph Media Group, is drawn) and the Newspaper Society (NS), which represents local and regional papers, alongside the Scottish Newspaper Society (SNS) and the PPA (representing magazines). PressBoF also shares a director, David Newell, with both the NPA and the NS (according to information on Companies House). The NPA has no web presence beyond this rudimentary site, and PressBoF and Scottish Newspaper Society (SNS) appear to have no independent web presence whatsoever. The industry bodies have been instrumental in leading industry negotiations on press reform, post-Leveson. David Newell has been particularly vocal recently in lobbying on the virtues of the PressBoF Charter.

However, the Charter proposed by PressBoF specifies (Schedule 4, Para 2(j)) that PressBoF itself will be replaced by the IFB, which will be “the body established by the newspaper and magazine industry to collect and provide funding for the independent self-regulation of the press”.

In lieu of any more information, it would appear that the IFB will be constituted as set out in Lord Black’s First (Para 15) and Fourth (Paras 20 & 21) Witness Statements to the Leveson Inquiry, that the previous structure will largely continue.

In his report, Lord Justice Leveson singled out PressBoF as a key component of the PCC’s ‘profound lack of any fundamental or meaningful independence from the industry’, by exerting actual and de factobudgetary control over the regulator and participating in key appointments processes (Volume IV, Part J, pp1520-1522). Elsewhere, he claimed that he saw “no need for such a body to exist at all” (Volume IV, Part K, pp1761-1762).

So, taking at face value the concession of the veto offered by the industry, how much control over the regulatory system does PressBoF exert in its own Charter?

1. The Charter itself is granted to PressBoF, and the current members of PressBoF will make up the initial recognition panel (Petition, Preamble, and Article 1 of the PressBoF Charter). The recognition panel will subsequently be replaced, but a “representative of the press” agreed with PressBoF/IFB will sit on the appointments panel (Schedule 1, Para 2.3).
2. PressBoF/IFB will retain year-to-year funding of the recognition panel, rather than funding being on a longer-term basis as Leveson recommended (Article 11). This maintains the unspoken obligation to the funding body that Leveson singled out as a severe problem with the previous system and sought to replace with four or five year funding periods agreed in advance.
3. Contracts for members of the recognition panel are far less secure than Leveson specified, being reduced from 5 years to 2 years, and they can be terminated unilaterally by the Chair of the panel (Schedule 1, Paras 5 & 6).
4. The Leveson recommendation that investigations carried out by the self-regulator should be financed by a ring-fenced fund has been removed from the PressBoF Charter. Without more information, it can be assumed that this fund is now optional, if it exists at all. In that case, investigations will be dependent on agreement by the funding body for the self-regulator, which could be PressBoF/IFB according to Schedule 3, Para 1.
5. The specification that investigations should be ‘simple and credible’ has also been removed (Schedule 3, Para 18), allowing for the convoluted investigations process with scope for multiple representations on the part of newspapers proposed by Lord Black and rejected by Leveson (Volume IV, Part K, p1766). The self-regulator would, it must be stressed, only be able to levy the much-vaunted £1,000,000 fines (or any fines) after a successful investigation.
6. Finally, PressBoF/IFB will have a veto over amendments to the Charter (Article 9.2) and a veto on dissolution to the Charter (Article 10.2). In effect, the ‘triple lock’ that supporters claim to be a protection against political interference is in fact a means of ensuring the influence of PressBoF/IFB in press regulation in perpetuity.

So, far from being a noble concession to opponents and an attempt to reopen negotiations on a cross-party Charter that is backed by public opinion and the will of Parliament, the loss of a veto (if it ever existed) on appointments to the Board of the self-regulator appears somewhat insignificant in the face of the proposed influence of the industry throughout the structure of the PressBoF charter.

Gordon Ramsay is Research Fellow at the Media Standards Trust. He tweets at @g_n_ramsay.
This article was cross-posted from the LSE Media Policy Project blog.

On 11 January 2012, Mr McKeogh obtained interim injunctions designed to secure the removal of the material along with Norwich Pharmacal orders.  On 12 January 2012, he was refused an order prohibiting the press from continuing to publish the defamatory material ([2012] IEHC 95).  At that stage the judge noted that there was “incontrovertible evidence” that Mr McKeogh was not the man leaving the taxi – as he had been in Japan at the time of the incident.  The judge commented at the time that

this whole unfortunate saga has led to the most appalling stream of vile, nasty, cruel, foul, and vituperative internet chatter and comment on YouTube and on Facebook directed against this entirely innocent plaintiff, and the anonymous authors of which have chosen to believe and assume is the man who did not pay his taxi fare, and who feel free to say what they wish about him, and in language the vulgarity of which offends even the most liberal and broadminded, and which I will not repeat.

The background to the litigation is set out in this Daily Mail article.

The plaintiff then sought a mandatory injunction so that all the defamatory material would be removed from the internet.  This was strongly resisted by Google and Facebook.   The application resulted, ultimately, in a judgment[pdf] given on 16 May 2013 by  Mr Justice Peart in the High Court in Ireland.

The judge expressed his surprise that Google and Facebook had not assisted the plaintiff more willingly.  A request from the court for an experts meeting was refused [10].  The application, in the end, took 10 days of hearing.  He also expressed concern at the reluctance shown by Facebook to provide the plaintiff with an electronic copy of the the fake Facebook profile page which had been established.

The judge decided that a mandatory injunction should be granted.  But before deciding what form this should take he ordered the defendants to nominate an expert or experts to meet with the plaintiff’s expert [23]. This was something that they should have agreed to do.

The judge did not make an immediate mandatory injunction order because it was not clear what steps were to be taken to comply with that order:

“Without such precision, the defendants will not know what they have to do to comply.  The proposed meeting should, if feasible, produce a report for the Court upon which each expert can agree.  In that event, the report would set forth what steps are to be taken to achieve the total takedown which the plaintiff requires, or at least what steps are possible to achieve that objective as far as reasonably possible” [25]

If the experts could not agree then the defendants’ expert(s) was required to produce a report with the plaintiff’s expert producing a response.  All this was to be done within 42 days.

The Judge also ordered Facebook to provide an electronic copy of the Facebook profile.  Any further order would await what transpired from the meeting of the experts [27].

Comment

This case provides  yet another illustration of the difficulties faced by individuals who are subject to campaigns of abuse on the internet.  Facebook Ireland Limited took part in the proceedings, as did Google Ireland Limited.  They had sought to argue that they were under no obligation to take any steps to assist the plaintiff.  The judge was clearly unimpressed by their failure to cooperate and frustrated by their attitude.  He was, nevertheless, hampered by the lack of clarity as to the technical steps which could be taken to remove the offending material.

It has been noted by a number of commentators that now the non-US operations of Facebook are located in Ireland, there is is likely to be more litigation involving that company in the Irish courts.  Although this case involved an Irish plaintiff, his lawyers were perhaps encouraged to litigate these issues by the availability of a local defendant (against which a judgment can be forced).

It remains to be seen whether the parties’ experts can resolve the issue as to how to remove the remaining defamatory material or whether the judge will required to grant a mandatory injunction in some form.

See also:

SCL Website “Defamation and Injunction: Google and Facebook Must Try Harder“

IT Law in Ireland “Defamatory material on Facebook and YouTube: McKeogh v. Doe and others“.

Clarke Jeffers Solicitors “Internet Defamation“