A Statement in Open Court [pdf] has been read on behalf of Ms Aurora Pierdant, an experienced lawyer practising in Mexico, who alongside her brother, Ricardo Pierdant, received a public apology, libel damages and costs after an inaccurate and defamatory article was published in the Guardian on 9 August 2016.
The parties reached a settlement that included a joint Statement in Open Court for Ms Pierdant whereby the Guardian acknowledged its mistake and repeated its apology.
The article, published online on 9 August 2016 with the headline “Mexican first lady’s Florida home owned by potential government contractor” falsely alleged that Ms Pierdant was guilty of corruption and embroiled in dishonest practices in connection with the current President of Mexico, Enrique Peña Nieto and his wife, Angelica Rivera.
The article referred to Ms Pierdant being sanctioned by the Mexican state oil firm Pemex, for administrative negligence and her being given a one year ban from work within the public sector as a result. Ricardo Pierdant was referenced in the article as having a property in Miami that is financially and physically connected to Ms Rivera. The meaning of the article was that Mr Pierdant was involved in a corrupt relationship with the President and his family that is/was likely to conflict with his business interests.
The article was untrue, and publicly available information was obtainable to refute the claims made against both Mr and Ms Pierdant in the article.
Upon receipt of letters of claim on behalf of both Mr and Ms Pierdant, the Guardian acted swiftly to remove the articles and publish an agreed apology and Mr and Ms Pierdant appreciated their promptness and willingness in this regard. However, within a very short space of time the article had been widely republished.
The allegations were picked up almost immediately by numerous publishers worldwide, including in the USA and Central America. Despite helpful correspondence from the Guardian’s legal team directly, a large number of the publishers failed to publish the apology and the initial story remained in circulation for some time. Ms Pierdant was also exposed to attention on social media, with publication coinciding with an exponential spike to interactions on her Twitter account comprising offensive and insulting Tweets, directly corresponding with the article’s false allegations. Secondary publications totalled almost 200.
Whilst these figures seem particularly high, Claimant lawyers will be familiar with the difficulties faced by clients with the rapid spread of stories via technology. Whether by intentionally syndicated articles or mainstream publishers jumping on the bandwagon, a complaint about an offending article that might originally be against one major publisher, within 12 hours of publication is suddenly against five or more. Within 24 hours an offending article has spread to social media, and clients are confronted with Facebook’s stock suggestion that the individual republishers should be contacted directly. Within 48 hours, an offending article spreads to secondary publishers; bloggers and comment pieces, often all over the world and in numerous different languages (grateful for Google Translate). So how to deal with hundreds of republishers and mitigate the damage to your client’s reputation?
In Lachaux v Independent Print Limited & Ors ([2015] EWHC 2242 (QB)) Warby J applied (and endorsed) the principle, established in Associated Newspapers Ltd v Dingle [1964] AC 371, that every republication of a defamatory statement is a new publication and creates a fresh cause of action for the person defamed (see [74]-[86]) (whilst we await the judgment of the Court of Appeal in Lachaux, there is currently no information available on when this will be handed down).
So, where a person voluntarily republishes a defamatory statement without the original publisher’s authority, the general rule is that no liability will attach to the defendant for that republication. However, where a defendant has authorised, intended or participated in the republication, or the republication was a reasonably foreseeable consequence of the original publication, a claimant can sue the defendant either for the original publication and repetition as separate causes of action, or sue the defendant in respect of the original publication only, but seek to have the effects of the republication taken into account in the assessment of damages. Following the Court of Appeal decision in Slipper v BBC [1991] 1 Q.B. 283, 300) per Bingham LJ:
‘The law would part company with the realities of life if it held that the damage caused by publication of a libel began and ended with publication to the original publishee. Defamatory statements are objectionable not least because of their propensity to percolate through underground channels and contaminate hidden springs.’
This remark is even truer in the 2017 world of online news than it was back in 1991.
The test has since been finessed, in McManus v Beckham [2002] EWCA Civ 939, limited to what is reasonably foreseeable, striving to reach a just and reasonable result between the parties. By confirming that the test is one based on reasonable foreseeability rather than a natural and probable consequence, the Court of Appeal recognised that the law relating to republication in defamation is as per the rules of remoteness and causation that are applied to all torts, but likely to be applied less liberally:
“It must rather be demonstrated that D foresaw that the further publication would probably take place, or that D (or a reasonable person in D’s position) should have so foreseen and that in consequence increased damage to C would ensue” (see para 43).
The advice to clients must be to move even faster: if you are put on notice about a proposed publication, take advice immediately as to whether you can take action to prevent publication. If publication has occurred, you need to act before the story goes further. It may not be sufficient to successfully obtain removal of the original article, if the republication bandwagon can’t be stopped from hurtling towards you. Assistance from the original publisher is likely to be useful but not determinative. With an eye on the republication statistics of major publishers, dust off your tort textbook and consider whether the primary publisher might be liable for that which follows.
Persephone Bridgman Baker is an Associate at Carter-Ruck who acted for Mr and Ms Pierdant.
Reblogged this on World Peace Forum.