Since the enforcement of the Defamation Act 2013, there’s been a decrease in defamation cases. The Act is viewed to have raised the bar when an action was made against a publisher for making false statements. On the flip side, social media cases in relation to people posting on social media sites and other forums have shot up by 38% - and that figure doesn’t include unreported cases…
Testing the law
Most defamation cases settle before they progress to a contested hearing, so the Act isn’t largely effecting the volume of work received by solicitors. That said, there is an increase in cases involving people posting on social media.
Claimants are testing the law and looking to other actions they can take. The misuse of private information, breach of data protection and harassment are on the up, and they’re not subject to the strict requirements as now required for libel under the Act.
‘Serious harm’ test
Previously, to test ‘serious harm’ the claimant had to prove there was a defamatory tendency in the words used. The Act now means the previous ‘threshold of seriousness’ is no longer used. Instead, the Act requires proof of the libel. The case of Lachaux determined claimants must prove, factually, that on the balance of probabilities, serious harm to the party’s reputation has been caused, or is likely to be caused, as a result of the publishing of the defamatory article.
Only in obvious cases, such as sexual crimes or conspiracy to murder, where they are widely published, can serious harm be inferred.
The test itself has been said to remain an unknown quantity, and will be reviewed in the Court of Appeal this November where it will be determined how the test is applied.
The effect of the Act is that claims, which would previously have succeeded, are now subject to a different test, meaning they wouldn’t be successful now. This is potentially part of the reason parties looking to bring actions are considering alternatives to libel.
The limitation date for a defamation claim - from the date of publication - is one year. This, along with the requirement to show serious harm, makes it even more difficult to make a successful claim.
Social media and the Internet
Most social media posts alone won’t meet the test required to show serious harm. The reason? Although many people posting on social media don’t seek legal advice in respect of what they’re writing, it’s not deemed to be a sufficient publication.
Although social media does produce new claims and further exposure, there’s often an increased problem where the papers feature an article relating to something on social media.
As well as looking to litigate on matters regarding defamatory posts, there are other methods solicitors take in order to deal with unwanted and untrue comments. Requests for removal can be made. Also, efforts can be made with the assistance of private investigators to establish the source of the original article or comment. This can then assist with having the article or comment taken down.
Although most social media posts won’t amount to successful libel claims, it’s always prudent to take care and consider the consequences of any article or post made online, as well as by any other means. There are instances where the person posting the comment, post or tweet for example, has a large base of recipients, where it may be deemed a sufficient publication.
This situation arose when Katie Hopkins tweeted a defamatory post about Jack Monroe in a supposed case of mistaken identity. Hopkins’ tweet was easily viewed by her some 600,000 followers on Twitter. It could also be read by anyone else who went on to her public profile. Hopkins has had proceedings issued against her further to tweeting the untrue remarks about Jack Monroe, as it’s likely to be found that in personally attacking an individual in sight of 600,000 followers will amount to a publication. Furthermore, it has been discussed that had Hopkins’ had fewer followers, but one of her followers (with a larger following) retweeted her post, then it would be deemed to have been published by the person (i.e. Hopkins’ follower) who retweeted the post (and therefore published to all of Hopkins followers too).
Claims under the Data Protection Act 1998
Claims being made under misuse of private information (tort) and the Data Protection Act 1998 (“the DPA”) are likely to rise. Claims of this nature don’t have to show they are subject to ‘serious harm’. Instead, actions are brought in relation to personal information, which has been shared without consent, regardless of whether it’s true or not. It was confirmed in the appeal courts of Google Inc v Vidal-Hall that misuse of private information is a tort, and the proof of the loss is unnecessary. As such, more claims under the DPA may continue to come about - and libel claims may continue to decrease.
Whether online or in a published article, it’s always advisable to consider the source and the truth behind any comments, posts or articles. It’s also always worth considering the likelihood of the success of the claim, or whether the claim itself is worth bringing, as the party making the comment or post may not be financially worth suing.
Our experienced team would be more than happy to assist you if you find yourself in a position of needing some legal advice on this subject. You can also comment below to ask a question.
Please do contact me, or a member of my team by emailing me or calling us on 01908 660 966.