DEFAMATION ACT 1996 s1 – ELECTRONIC COMMERCE (EC DIRECTIVE) REGS 2002 - KASCHKE V GRAY [2010] EWHC 690

The claimant K was suing H, an Internet service provider in relation to a defamatory statement published in a blog that appeared on the site owned and controlled by H. H sought summary judgment on the ground that H was protected by the immunity conferred on ISP providers who merely provided for storage of a defamatory item on their websites without any further active involvement. The judge refused summary judgment in favour of H because there was an arguable case that H had been involved in more than mere storage in relation to the material blog.

DEFAMATION ACT 1996 s4(3) – Claim for libel and malicious falsehood – Rejected offer of amends – claimant needed to prove malice on part of defendant to proceed with claim – Thornton v Telegraph Media Group [2011] EWHC 1884, Tugendhat J

T wrote a work about art, which was reviewed by B in the defendant’s newspaper.  The allegations centred around whether or not T had interviewed the reviewer as part of the preparations for the book and whether T gave contributors a right to copy clearance of material relating to them in the book. An offer of amends was made as defendant accepted allegations in review could not be justified but the claimant rejected this. This meant she had to show the defendant knew that the allegation referred to the claimant and that it was both false and defamatory of the claimant. In relatively rare case of successful showing of malice the judge held on the facts that the claimant had shown the reviewer knew that it was false and defamatory of the claimant. The judge awarded the claimant £50,000 damages for libel and £15,000 for malicious falsehood apportioned 50:50 between print and on-line publication.

DEFAMATION ACT 1996 S2-4 – OFFER OF AMENDS – BOWMAN V MGN LTD [2010] EWHC (QB)

The claimant, an actor, claimed damages for the distress caused to him by the publication on the Mirror Group website of a false allegation claiming that he was romantically involved with an actress when he was already in a serious relationship with another person.  The article was removed immediately – having only been on the site for some 27 hours and a prompt apology and offer of amends made under ss2-4 Defamation Act 1996.  There was no agreement however on the amount of compensation which had to be fixed by a judge. The judge took as the starting point a figure of £8,500, which was reduced by 50% to £4250 for the promptness of the offer of amends by the defendant.

SENIOR COURTS ACT 1981 – s69(1)(b) – WHETHER A CASE SHOULD BE TRIED BY JUDGE ALONE – FIDDES V CHANNEL FOUR [2010] EWHC 730

The claimant a martial arts expert, who owned a chain of martial arts schools in the west country, claimed he had been libelled in a ‘Cutting Edge’, Channel 4 programme entitled ‘The Jacksons are coming’ (the Jacksons being the famous musical family). The claimant argued that the programme alleged that he used his position as a family friend to hypocritically deceive them, abusing his position as an apparent friend for personal benefit and presenting him as a manipulative and dishonest individual. Initially the parties agreed on jury trial but then the defendants changed their mind and sort a trial by judge alone under s69(1) Senior Courts Act 1981 – this application was granted at first instance and the judge’s exercise of his discretion under the section was upheld by the Court of Appeal in the light of the fact that it would be a fairly lengthy trial of some 20 days and involve a considerable review of documents and film  - however the court cautioned against too readily using costs (here referred to as ‘vast costs’) as an excuse for removing prima facie constitutional right to trial by jury in defamation cases (see para 18 judgment). Case is a good review of factors involved in making decisions for trial by judge alone under s69 Senior Courts Act 1981.

SENIOR COURTS ACT 1981 – s69(1)(b) –  WHETHER CASE SHOULD BE TRIED BY JUDGE ALONE - COMMON LAW QUALIFIED PRIVILEGE  - RECIPROCAL INTEREST IN MAKING AND RECEIVING COMMUNICATION ON MATTERS OF LEGAL, MORAL OR SOCIAL INTEREST – HONEST COMMENT ON MATTERS OF PUBLIC INTEREST – BOWKER V ROYAL SOCIETY FOR THE PROTECTION OF BIRDS [2011] EWHC 737
 
This was an action against the charity the Royal Society for the Protection of Birds (RSPB) in relation to certain communications critiquing a peer-reviewed scientific paper written by the claimants in relation to the black grouse conservation at an RSPB managed site in Wales. Claimants asserted the RSPB had claimed they had acted recklessly, used untested field methods and performed certain aspects of their fieldwork incompetently and dishonestly misled readers. It was claimed the RSPB had acted dishonestly and maliciously. In a preliminary hearing the judge rejected the majority of the defamatory meanings alleged – it was not arguable that a reasonable reader could conclude that the claimant had been dishonest, reckless or incompetent - but certain lesser meanings could be argued about the claimants’ ability as field workers. The judge ruled this would be a case where because of the considerable amount and complexity of the scientific evidence trial by judge alone would be appropriate – applying s69(1)(b) of the Senior Courts Act 1981. As case would be tried by judge alone question was whether the claimant’s had a real prospect of success – the judge held they did not as RSPB clearly protected by qualified privilege defence. The RSPB's publications were clearly covered by qualified privilege. B's paper and the RSPB's report were matters of legitimate interest to the recipients of the email. Subject to motive and honesty, it was plainly for the common convenience and welfare of society that individuals within the RSPB should be free to communicate their concerns, internally, about the merits or otherwise of a study published in a peer-reviewed scientific journal relevant to the RSPB's work, and that they should be able to discuss such matters with individuals outside their organisation who had a legitimate interest in the subject matter. Equally, given that the paper raised issues about the RSPB's conservation work at the site, the site's owners clearly had a legitimate interest in receiving the RSPB's letter.  There was a mutual legal, social or moral interest in making and receiving the communications in question. The RSPB was therefore entitled to summary judgment on the issue of qualified privilege. B's case on malice and dishonesty had no reasonable prospect of success and there were no other compelling reasons why their claim should be heard. 

REHABILITATION OF OFFENDERS ACT 1974 ss4 & 8 – Whether injunction could be granted under Act to prevent publication of spent conviction on basis breach of right of privacy and contrary to claimant’s human rights under Article 8 ECHR 1950 –  KJO X XIM [2011] EWHC 1768 (QB) Eady J

The claimant had been involved the forgery of the signature of a member of his family and had been convicted of forgery, his conviction having become spent in 2002. He had moved to Hong Kong where he was seeking employment but his uncle determined to stop this was communicating his spent conviction to potential employers in Hong Kong from the UK. This was not an action based on s8 arguing that the defendant could not use the defence of justification because he was publishing the spent conviction motivated by malice rather a case based on privacy and breach of data protection legislation.  Eady J refused to spell out a right to a prior restraint injunction to prevent communication of the spent conviction. In Eady J’s view the HRA 2000 did not justify giving such a broad purposive reading to the ROA1974 and only domestic legislation or a decision of the European Court of Human Rights in Strasbourg could provide for such a right.

LIMITATION ACT 1980 ss32A & s33 – DISAPPLICATION OF ONE YEAR LIMITATION PERIOD IN DEFAMATION CASES – BRADY V NORMAN [2011] EWCA Civ 107

The Court of Appeal upheld the trial judge’s decision not to disapply the one year limitation period in relation to defamation claims – the claim issued two years after the publication of the libel was issued shortly after the completion of an earlier libel action between the parties – the excuse for the delay was that the claimant was short of funds and that his solicitors refused to proceed until the bill of costs in relation to the first action was settled – neither of these excuses were accepted by the court who emphasized the importance to the media of actions being promptly commenced. In addition the earlier action had provided the claimant with sufficient vindication in any event.

COMMON LAW – PLEADING OF DEFAMATORY MEANING – SUMMARY PROCEEDINGS TO DETERMINE WHETHER WORDS REASONABLY CAPABLE OF BEARING ALLEGED MEANING – LALIT MODI V GILES CLARKE [2011] EWCA CIV 937 

The claimant was a successful Indian businessman and also one of the prime movers behind the creation of the Indian Premier League and the hugely successful Twenty20 competition in Indian, but he was also a vice-president of the Board of Control for Cricket in India and a member of the International Cricket Council (ICC) in connection with discussions about the launching of another such league in the northern hemisphere – the defendant who was Chairman of the England and Wales Cricket Board sent the following e-mail the President of the Indian Board: "It [the defendant’s proposed scheme] sets out a plan to destroy world cricket's structure and especially that in England, and create a new rebel league. The plan seeks to remove all Boards' powers, and involve players in a fashion unheard of. I am certain [the Board of Control for Cricket in India] had no knowledge of this meeting nor of these proposals, but [M] clearly represents [the Indian Premier League] and its Governing Council are offering financial inducements to English counties. We have already commenced legal action with regard to the English officials and counties involved. We also wish to take action against IMG for promoting this along with [M] and to seek their banning from world cricket. [International Cricket Council] Regulations are very clear concerning contacts of this nature which are forbidden. Your help and support in eradicating this threat and dealing with the miscreants will be greatly appreciated".
The Court of Appeal allowing an appeal ruled that these words were capable of bearing a defamatory meaning - that the claimant had by his actions undermined those rules to which he was a party while professing to be bound by them; he had engaged in secret meetings and was therefore acting dishonourably.  It will now be for a jury if the case goes to full trial to determine whether they in fact had this meaning in the context of the particular case. 

COMMON LAW – PLEADING OF INNUENDO MEANINGS – BATURINA V TIMES NEWSPAPERS [2011] EWCA Civ 308

Times Newspapers published a story about a Russian business woman whose husband was mayor of Moscow buying a London company using a front company which they accepted now was false and had issued a statement of correction. A libel action was launched on the basis that readers would take this to mean that she and her husband were trying to avoid official rules on declaration of interests and purchases which had to be made by elected officers in the Russian Federation. There were four classes of reader to whom publication was alleged, namely readers of (i) the newspaper in England; (ii) the newspaper in Russia; (iii) the online article; (iv) foreseeable re-publications in Russia. The judge allowed the claim to proceed in respect of the second and fourth categories on the basis that it could not be said that no-one in those categories would have inferred the alleged innuendo. He struck out the claim in respect of the other two categories. T argued that (1) a defendant could not be liable in defamation where that was based on an innuendo which he had not appreciated, and could not reasonably have been expected to appreciate, at the time of the statement; (2) the claim should have been struck out in full, not merely in part; (3) if the claim was to proceed, B should be required to identify specific individuals who had inferred the innuendo.
The Court of Appeal rejected the arguments advanced by Times Newspapers and that Article 10 of the European Convention on Human Rights required a change in the law in regard to the rules on innuendo. The Reynolds defence provided a sufficient defence in cases of this type and there might be a defence of responsible publication on a matter of public interest in a case such as this.
Where meaning innuendo was alleged, the claimant ought to specify the persons with the knowledge from which they inferred the innuendo, Grappelli v Derek Block (Holdings) Ltd (1981) 1 WLR 822 CA (Civ Div) applied. In relation to the first category, although the newspaper had a wide circulation, there was no evidence of a wide circulation among Russians in England. The court would not find for B without specific readers who had appreciated the innuendo on reading the article being called, and it would be unfair on T not to require B to identify such readers. The same conclusion applied to readers in the other categories. Such readers would have to be produced at trial and be credible witnesses.

COMMON LAW – FAIR COMMENT ON MATTER OF PUBLIC INTEREST – SPILLER V JOSEPH [2010] UKSC 53

This case is important review of the defence previously known as ‘fair comment on a matter of public interest’ which the Supreme Court has suggested be renamed as ‘honest comment’ – the case should lay to rest serious concerns in the scientific community that critical articles about various products – often relating to health and fitness – were being withdrawn or suppressed because of aggressive defamation actions by the commercial firms involved who were seeking to silence criticism by the prospect of defending expensive defamation actions.  The specific modification of the defence was a disapproval of the view expressed by Lord Nicholls in Tse Wai Chun Paul v Cheng [2001] EMLR 777 where he stated that: “Next the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made.  The reader or hearer should be in a position to judge for himself how far the comment was well founded.”  - the Supreme Court adopted a more liberal approach – “Next the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based.”  It followed from this that readers should understand what the comment was about and the commentator, should if challenged give particulars of the subject matter in order to explain why they expressed the views they did. It remains the case however that subject to s6 Defamation Act 1952 the underlying material facts must be true. In more wide ranging comments Lord Phillips was critical of desirability of jury trial in defamation cases.  He also canvassed further matters that might be reviewed by the Law Commission such as whether there was any need for the requirement that the defence be based on a matter of public interest. (See proposed reform of the defence in the Ministry of Justice’s Draft Defamation Bill - http://www.justice.gov.uk/consultations/365.htm Draft Defamation Bill: Consultation Paper CP3/11, March 2011, Annex A Text of Bill clause 4 – Honest Opinion)

COMMON LAW – QUALIFIED PRIVILEGE – REYNOLDS DEFENCE – NEWSPAPER AND ONLINE ARCHIVE PUBLICATION – ROLE OF APPELLATE COURT – WHAT CONSTITUTED RESPONSIBLE PUBLICATION – FLOOD V TIMES NEWSPAPERS [2010] EWCA Civ 804

Gary Flood was named in an article in the Times as being under investigation for receiving payments from a private security company for giving the sale of intelligence relating to extradition attempts by the Russian authorities of wealthy Russians living in the UK.  The article identified Flood as being the subject of the investigation for alleged corruption - while in fact the information supplied by the sources to the Newspaper merely identified the officer by the codename Noah. A statement from Flood’s lawyer denying any impropriety was included in the article as well as a statement by the owner of the security firm denying any payments had been made to a Scotland Yard officer. At first instance the Times were permitted to rely on the Reynolds defence. The Court of Appeal ruling that the application of the Reynolds defence was a matter of law not merely the exercise of discretion held they could substitute their own view. The Court of Appeal took the view that the defence was not available to the newspaper. The allegations were serious, and by publishing them in detail, T must have realised that the story would have greater impact and a greater effect on F's reputation. T did not seem to have done much to satisfy itself that the allegations were true. At the time of publication they were no more than unsubstantiated, unchecked accusations from an unknown source, coupled with speculation. The only written evidence available to T did not identify any police officer, let alone F, as the recipient of money at all, let alone for providing confidential information. The mere fact that the allegations had been made was not enough to justify their publication, otherwise there would have been a reportage defence.   Both at first instance and in the Court of Appeal the defence was not available to the archive publication and the case once again highlights the need to take down contested publications or at least apply a very strong disclaimer to the effect that the allegation is denied and subject to litigation. The case has attracted strong media criticism as being too illiberal application of the Reynolds principle and not in line with the approach of Lord Bingham in Jameel v Wall Street Journal Europe [2006] UKHL 44 (see proposed reform of the defence in the Ministry of Justice’s Draft Defamation Bill - http://www.justice.gov.uk/consultations/365.htm Draft Defamation Bill: Consultation Paper CP3/11, March 2011, Annex A Text of Bill clause 2 – responsible publication on a matter of public interest )

COMMON LAW – DEFAMATION – ABSOLUTE PRIVILEGE – LETTERS TO GENERAL MEDICAL COUNCIL’S FITNESS TO PRACTISE DIRECTORATE – WHITE v SOUTHAMPTON UNIVERSITY HOSPITALS NHS TRUST [2011] EWHC 825(QB), (2011) 120 BMLR 81

In an age where inquiries of one sort or another are a frequent occurrence this case reaffirms the common law principle that relevant communications concerning complaints to a quasi-judicial body, here a body looking into matters of probity and conduct relating to a doctor, are covered by absolute privilege.  Eady J rejected the claimant’s argument that two letters to the Fitness to Practise Directorate of the General Medical Council should only be protected by qualified privilege and thus be able to be defeated by the claimant demonstrating malice on the part of the defendant.  Eady J emphasized the public policy objective of enabling people to speak freely without inhibition and fear of being sued when drawing material to the attention of a professional body (@ para 7)

COMMON LAW – DEFAMATION – ACTION BY PUBLIC OR MUNICIPAL EMPLOYEES IN RELATION TO OFFICIAL ACITIVIES – MARK MCLAUGLIN V LAMBETH LBC [2010] EWHC 2726(QB)

The Court refused to extend the rule enunciated in the House of Lords in Derbyshire CC v Times Newspapers [1993] AC 534 that governmental bodies whether central, regional or local could not bring libel actions did not extend to actions by individual officials – this was not a way of getting around the rule – provided that the normal rules for a successful action were complied with they could sue.

COMMON LAW – DUTY-INTEREST QUALIFIED PRIVILEGE – WHETHER PRIVILEGE EXERCISED DISPROPORTIONATELY – CLIFT V SLOUGH BC [2010] EWCA CIV 1484

In the consideration of the application of any defence in the law of defamation – it must always be borne in mind that consistent with Articles 8 & 10 ECHR 1950 any use of the privilege must be proportionate and not exceed what is reasonably required in the situation in question. In this case the claimant had been put on a local council’s violent persons register for 18 months after an incident as representing a medium risk to council employees.  The trial judge held while circulation to employees dealing with public such as trading standards officers, nieghbourhood enforcement and community safety departments was justified further distribution was not proportionate and not covered by the defence and this decision was upheld by the Court of Appeal.

Defamation Act 1996 – S1- Electronic Commerce (Ec) Directive 2000/SI 2013 – Metropolitan International Schools Ltd V Designtechnica Corp & Google Inc [2009] EWHC 1765 (QB) 16/7/09.

This case reveals how uncertain the position of internet search engines are in relation to defamatory statements that searches carried out on them throw up and the lack of clarity in English law. Google Inc (G) applied to set aside an order giving the respondent, Metropolitan International Schools, which provided adult distance learning courses in relation to the development of computer games and their design, permission to serve a claim for defamation outside the jurisdiction. The allegation was that the first defendant (D) a digital trends website, had published defamatory material on its website and it was alleged that G had in a search return or ‘snippet’ published similarly defamatory material. One of the several issues raised was whether G had any responsibility for the words or whether it could rely on a defence of ‘innocent dissemination’ either via s1 Defamation Act 1996, the common law defence of innocent dissemination or rely on Regs17-19 of the Electronic Commerce (EC) Directive 2002/SI2013. In essence it was argued under s1 DA 1996 that Google were not the publishers of the statement; that they had taken reasonable care in relation to the publication an did not know and had no reason to believe that what it did caused or contributed to the publication of the defamatory statements. Authority in English law except for two cases dealing with internet service provides – Godfrey v Demon Internet Ltd [2000] 1 QB 201 & Bunt v Tilley [2007] 1 WLR 1243. The judge was not in fact convinced that any of the three routes would provide effective protection for Google – though he did take the view that s1 DA 1996 had not ruled out reliance on the old common law defence of innocent dissemination – but it would not be likely to avail Google once they were aware of the publication of the allegedly defamatory statements. Neither did he feel that the E-commerce regulations effectively dealt with search engines as opposed to internet service providers. In the end he was able to circumvent the problem by deciding that Google had no primarily liability at common law as ‘publishers’. Having examined how the search engine system works and the degree of human intervention that at common law they could not be regarded as ‘publishers’ of the material as they had neither authorized or acquiesced in its publication. He did observe obiter, however, that he felt it was difficult to argue that Google would have been protected by s1 DA 1996 as currently drafted. The case highlights the need for the amendment of either or both s1 DA 1996 and the e-commerce regulations to definitively regulate the position of search engines.

Defamation Act 1996 – ss1 & 17 – European Convention for the Protection of Human Rights 1950 Article 10 – Times Newspapers Ltd V UK (Case 3002/103), ECHR, 10/3/09 [2009] EMLR 14

Orthodox English defamation takes the view that each time a defamatory statement is communicated it is published and has rejected the so-called ‘single-publication rule’. In the era of the internet and the maintenance of web-based archives this can of course mean that potentially a fresh action is triggered every time someone accesses an uncorrected archive or website. This can in effect nullify the impact of the generous 12 months limitation period given in defamation cases by s4A Limitation Act 1980. The rule was reaffirmed by the Court of Appeal in Loutchansky v Times Newspapers Ltd [2002] 2 QB 783. The House of Lords having refused leave to appeal, Times Newspapers applied to the European Court of Human Rights in Strasbourg arguing that the rule infringed their freedom of expression rights under Article 10 ECHR 1950. The domestic courts had rejected the argument that the first placing of the article on the internet was the operative publication and therefore the action was time-barred 12 months after that at least where no request to amend or take down or modification of the archive. The ECHR held that internet archives played an important role in the dissemination of information and fell within the scope of Article 10. However the margin of appreciation afforded to the domestic courts in striking a balance between the competing balance was greater in relation to news archives (as opposed to the reporting of current events) and the duty of the press to act in accordance with the principle of responsible journalism was likely to be more stringent. Here it was not a disproportionate interference with freedom of expression to require a newspaper to publish an appropriate qualification to the article where it had been aware of libel proceedings in relation to the hard copy version. Here the related proceedings had been brought about a year after the proceedings in relation to those related to the hard copy and the newspaper had demonstrated no prejudice in having to defend them. However the Court took the view that proceedings brought after a lapse of a considerable period might give rise to a disproportionate interference with press freedom. Clearly one issue that attention will have to be given to is whether to remove the article completely from the archive or draft a suitable qualification that taken together with the article removes the sting of the alleged defamation.

In light of the above decision the UK Ministry of Justice has published a consultation document on whether the multiple publication rule should be abolished. See 'Defamation and the internet: the multiple publication rule', Consultation Paper CP20/09 16 September 2009: www.justice.gov.uk/consultations/defamation-internet-consultation-paper.htm

Defamation Act 1996 ss2 & 4 – Offer of amends – Tesco Stores V Guardian Newspapers [2009] EMLR 5

The Guardian Newspapers (G) had published allegedly defamatory articles claiming Tesco Stores (T) had been engaged in a scheme to avoid payment of corporation tax. G admitted the falsity of the statement and the allegedly defamatory meaning. G published a retraction of the principle allegation stating instead that T had been involved in avoidance of stamp duty land tax. G served its defence 21 minutes after making the offer (which must be made no later than the service of a defence). T neither accepted or rejected the offer but let time run. T argued that even if they accepted the offer they could continue to pursue a parallel action for malicious falsehood. In effect T wanted to delay a decision until the outcome of the parallel action. Eady J decided that T had either to accept or reject an offer reasonably promptly in the light of philosophy of encouraging speedy and inexpensive disposal of defamation actions. T had either to accept or reject the offer and in the latter case prove publication with malice under s4(2)-(3) DA 1996. Here in effect the offer had been rejected by lapse of time but in the circumstances of the case the judge permitted, in the interests of justice, the re-instatement of the offer to allow another opportunity for acceptance. The action for malicious falsehood would be stayed as it achieved no useful additional purpose or protection to that achieved by the main defamation action. The provisions in s2-4 do not expressly state any specified time for acceptance – all s4(1) ‘If an offer to make amends under section 2, duly made and not withdrawn, is not accepted by the aggrieved party, the following provisions apply [e.g. the need of the claimant to prove malice].

It is interesting that in Scotland the court appears more favourable to the claimant permitting acceptance of an offer (subject to any adverse costs implications) up to the time either a judge or jury has reached a decision – see Moore v Scottish Daily Record [2007] SLT 217.

Defamation Act 1996 – S14 – Reports of judicial proceedings – Crossley & Crossley v Newsquest (Midlands) Ltd [2008] EWHC 3054

S14(1) DA grants a defence of absolute privilege to publication of defamatory statements contained in a ‘fair and accurate report of proceedings in public before a court’ [this covers domestic courts, ECJ & ECFI, ECHR and an international criminal tribunal established by UN or under other international agreement to which the UK is a party – interestingly enough not the International Court of Justice in Hague reports of which are covered by qualified privilege under s15 DA 1996]. In Crossley & Crossley v Newsquest (Midlands) Ltd the issue was the scope of the protection. Three days after a county court nuisance action, relating to the discharge of sewerage from their land, brought by the claimants, the defendants published an article about the case and also referred to an earlier case which related to the matter which had happened some months before. The claimant argued the article contained a photograph and with a caption involving an emotive phrase which was defamatory and not protected by privilege because it did not relate to the immediate action but was taken from the report of the earlier action. Eady J held a report published 3 days later was contemporaneous but he also took an expansive view of the scope of the privilege.

In Eady J’s view the Master was correct in concluding that absolute privilege would attach to parts of the article reporting on the county court hearing as that reporting would constitute a contemporaneous report of court proceedings for the purposes of the Defamation Act 1996 s.14 and there was little doubt that a report published three days after a court hearing would be so classified. Absolute privilege would also extend to the reporting of the earlier hearings at least insofar as it was reasonably necessary to give context to what took place at the county court hearing and to enable readers to understand the contemporaneous report of the court hearing. In other words, that coverage should be construed as forming an integral part of the contemporaneous report. The offending caption to the photograph would also be treated as part of the attempt to report, fairly and accurately, the outcome of the trial and would, therefore, attract qualified privilege.

Defamation – Article 8 ECHR – common law qualified privilege Clift v Slough BC [2009] EWHC 912

The claimant witnessed some anti-social behaviour in a local park and was advised to ring the local authority Anti-Social Behaviour Officer which she did, but the conversation went badly and she slammed the phone down on him. C complained about this to the local authority who appointed K the head of public protection at the council to investigate. K rejected C’s complaints but noting an alleged comment she had made to a council official decided that this amounted to threatening and violent behaviour and decided she should be placed on the local authority Violent Persons Register for 18 months. This was notified to other council departments and government agencies operating within the borough and to certain other people outside the Council by e-mail. C sued for defamation alleged that she had been falsely categorized as a violent person. She alleged that K had acted maliciously in effect to marginalize her and denigrate her complaint. The jury rejected the defence of justification. On the question of qualified privilege the judge ruled that the local authority had to demonstrate that it complied with C’s Article 8 rights and her rights under the Data Protection Act 1998. It was entitled to a qualified privilege but only in relation to publication to front line customer-facing departments such as trading standards, housing benefit, & community protection etc. Publication had been too wide within the council and to partner organizations – it was neither fair nor proportionate. However the jury rejected the view that K had acted maliciously so permitting the council to rely on the limited qualified privilege defence. The jury awarded C £6,000.

Defamation – Absolute privilege – accusations of rape – A v K [2008] EWHC (QB) 594 24/1/08

K had made accusations to the police that X had raped her. X subsequently sought to make a claim for defamation. Pitchford J ruled that even assuming K had made a malicious complaint to the police K was entitled to absolute privilege at common law. The public policy priority was that the complainant should be free to make accusations to the police without the fear that that would be subsequently challenged in separate proceedings [N.B. this does not rule out the possibility for a subsequent action for malicious prosecution].

Defamation - admission of similar fact evidence - Desmond v Bower [2009] EWCA Civ 667 7/7/09

Richard Desmond, the proprietor of Express Newspapers, was suing the writer of a biography about him, in which it was suggested that he used his newspapers to mount attacks on those he perceived had acted in a hostile manner or in a way contrary to his wishes. Desmond alleged that this was defamatory and that he did not interfere with the editorial independence of his newspapers. The defendant wished to introduce a tape recording of what was described as a 'foul-mouthed tirade' in a call to Jafar Omid, who was involved in the running of a financial fund - Pentagon Capital Management - seeking the repayment of £75,000 from the fund to Desmond's son. It was argued that this call demonstrated that he might well be motivated by a desire for personal revenge in relation to his running of his newspaper group. Using his case management powers Eady J ruled that the evidence should not be admitted but the Court of Appeal reversed this ruling. In the judge's view the evidence related to events that had occurred after the issues concerned in the instant case and that in relation to justification, subsequent material was normally only permitted to justify a general Lucas-Box meaning relating to character trait.

Adopting a broad brush non-technical approach the Court of Appeal held that the recording could be introduced as 'similar fact' evidence. The defendant would not be unduly prejudiced and there were striking similarities between the allegations and the incident which had been taped - this might incline to the jury to take the view that he was the type of man who might pursue personal vendettas of this nature and might go to sustaining the defence of justification - the evidence was admitted and the jury found in favour of the defendant.

Defamation Act 1996 – ss2-4 – Warren v Random House Group [2008] EWCA Civ 834, 16/7/08.

This litigation arose out the bitter breakup of the relationship between Ricky Hatton, the well-known boxer and his fight promoter Frank Warren. A number of allegations were made in Hatton's book 'Ricky Hatton: The Hitman, My Story' one of which concerned the terms and conditions on which an American opponent had been engaged to fight Hatton – it was claimed by Warren that the passages in their natural and ordinary meaning meant he had dishonestly conned the American opponent into accepting a pitiful fee for fighting Hatton on the basis that American TV did not want to televise the fight. After an investigation by the claimant's solicitor and some provisional enquiries an offer of amends was made and accepted by the claimant under the provisions of ss2-4 Defamation Act 1996 – the defendant publisher agreed to make a suitable correction and sufficient apology, publish them in a reasonable and practicable manner and pay agreed compensation and an apology was made in open court though the level of compensation had not been agreed and would be fixed by the judge under s3 DA 1996. However, after further investigations the defendants now sought to justify the allegation and were seeking to adduce new evidence and get the offer of amends set aside despite the fact it had been accepted by the claimant. The DA 1996 made no provision for setting aside an agreed offer of amends. One lacuna in the sections is that the claimant cannot get an injunction preventing repetition of the libel. The Court of Appeal expressed the view that, whilst a contract in strict sense was not created, an offer of amends could be set aside on the traditional grounds for impugning a contract (fraud, misrepresentation, duress etc – see para 17). However, none of these factors were present in this case.

The Court of Appeal, however, said there was a residual discretion to unwind an offer of amends but that it should only be exercised in special or exceptional circumstances, involving circumstances which by reason of their type or gravity were not circumstances which were intended to be covered or ought to have been foreseen at the time the undertaking was given. There were no special circumstances in this case the claimant's solicitor had carried out an investigation of the facts and had chosen not to probe more deeply – this was a free choice, which could not now be reneged on as they had come across new evidence (see para 54 & 68). In relation to the compensation payable as a result of the offer of amends and in relation to the assessment of damages in the claims going to full trial the Court of Appeal also made some useful observations in relation to the introduction of facts relating to the contextual background with a view to securing a reduction in the damages payable to a claimant (see Burstein v Times Newspapers [2001] 1 WLR 579 & Turner v News Group Newspapers Ltd [2006] 1 WLR 3469). The facts related to the 'moral obligation' to increase the American fighter's agreed contractual fee once it became clear what fee the US broadcaster, Showtime, would pay to show the fight, and also in relation to alleged illegitimate and dishonest deductions from the American fighter's fee. The Court of Appeal ruled that such evidence could be adduced even if it had been ruled that it could not be introduced via a plea of justification. However, the evidence was held not to be sufficiently directly relevant to permit introduction under the Burstein principle.

Defamation Act 1996 – s15 – Parliamentary Privilege – Qualified Privilege – Fair and accurate report of Parliamentary proceedings – Single meaning rule - Repetition Rule - Curistan v Times Newspapers Ltd [2008] EWCA Civ 432 –

This case concerned alleged allegations of corruption and undeclared links with the Irish Republican Army (IRA) in relation to various financial matters and suggestions of money laundering. The article in the Sunday Times was a 'hybrid article' concerning both privileged and non-privileged material. The allegations were that the MP's speech distorted and added defamatory material not protected by privilege and made the report one that was not fair and accurate. Dispute as to what natural and ordinary meaning of words were – was he guilty of malpractice or merely that there were reasonable grounds for suspecting he was involved with IRA dirty money (see Lucas-Box v News Group Newspapers [1986] 1 All ER 177 & Chase v News Group Newspapers Ltd [2003] EMLR 218)? The case involved three key rules in defamation – the single meaning rule, the repetition rule, and the scope of qualified privilege in the light of the intermingling of unprivileged material. The Court of Appeal ruled that the natural meaning of the words was that there were reasonable grounds for suspecting that the claimant had been involved in financial practice. The report was privileged and fair and accurate and this had not been lost by commingling of non-protected material; nor had the Sunday Times adopted the allegations as their own. The court must not confuse intermingling, which might result in the loss of privilege, with adoption – they were different concepts. In relation to determining the meaning of the non-privileged parts the privileged parts merely formed the context against which the non-privileged parts were to be judged. The repetition rule does not apply to the repeating of privileged material even if that is found to be untrue. The single meaning rule did not apply here and the meaning of the non-privileged parts had to be determined independently of the privileged parts.

Limitation Act 1980 – ss4A, 32A – Gentoo Group Ltd v Hanratty [2008] EWHC 627 (QB)

G, a controversial registered social landlord, provided rented social housing began proceedings against a group of individuals, collectively 'Dads Place', for defamation and harassment from a serious of anonymous publications made on the website. The individuals were held liable but the action was compromised before damages assessed. Applications made to identify individuals involved in the application against the defendant were withdrawn following his unequivocal denial, verified by a statement of truth of any relevant knowledge or personal involvement. Information later arose which seemed to implicate the defendant and G then brought proceedings against the defendant for joint responsibility for the e-mails – the last postings were within a year of the new action and within s4A but the earlier e-mails were outside the period and G sought, under s32 A, for the court to exercise its discretion to disapply the 12 month limitation period. The Court exercised its discretion in favour of the claimant and allowed action against the earlier postings. It was not disproportionate or disreputable and the cogency of the evidence was not affected, there was prima facie to suggest the defendant had been involved with the other individual and was, therefore, dishonest and G was not responsible for the material delay.

Courts and Legal Services Act 1990 – s8 – Gur v Avrupa Newspapers [2008] EWCA Civ 594.

The Court of Appeal gave further guidance on the assessment of damages by judges and juries, in the light of their own decisions in John MGN Ltd [1997] QB 586 & Heil v Rankin [2001] QB 272 and the ECtHR in Steel v United Kingdom (6841/00) (2005) EMLR 15. A UK based Turkish language newspaper suggested that the claimant, G, a UK resident and a prominent member of the British Turkish community, had acted fraudulently, in using, for his own benefit, money destined for charity. The trial judge found that the libel was serious and prominent – no defence was offered. The libel was considered to involve aggravating elements and the judge assessed damages at £85,000. The defendants appealed contending the damages were excessive and disproportionate, failed to have regard to the awards of general damages in personal injury cases, wrongly had regard to the awards of juries in other cases, and failed to pay sufficient regard to the defendant's income and resources. The Court of Appeal dismissed the appeal, declining to use its power under s8 CLSA 1990 to substitute a lower figure. It affirmed that detailed comparisons with personal injury awards was not appropriate but regard in a general way to conventional levels of awards in such cases as a check on the reasonableness of defamation awards was. Judges and juries could be referred to earlier first instance reasoned judgments on the award of damages – but not general jury awards. The means of a defendant was irrelevant in assessing tort damages and insofar as dicta in Steel v UK suggested the contrary a change to this long-standing and fundamental principle of general tort law could only be made by the House of Lords.

Common Law – Reynolds common law qualified privilege – privilege applies to all media not only press and broadcasters – Seaga v Harper [2008] UKPC 9, 30/1/08.

A Jamaican politician, leader of the main opposition party, made libellous statements about the claimant, a deputy police commissioner, at a public meeting based on evidence given to him by senior member of his party which was widely reported in the media. The question was whether S could claim the Reynolds public interest privilege was only available to the media. Privy Council stated Reynolds privilege was based on liberalizing media and there was no reason why the privilege should not be extended to publications made by any person who published material of public interest in any medium, so long as the requirements of the statement were of public interest and the test of responsible journalism was met. The standard of conduct required of the publisher had to be applied in a practical manner and having regard to practical realities and the material looked at as a whole, not dissected or assessed piece by piece. In particular, case privilege could not be relied on as lack of sufficient care in checking reliability of information.

Common Law – Absolute Privilege – oral complaint of criminal assault to police – Westcott v Westcott [2008] EWCA Civ 818, 15/7/08.

A daughter-in-law made a complaint against her father-in-law of assault after an incident on delivering her son to see her estranged husband. No formal action following the police investigation was taken and the father-in-law, a magistrate, brought an action for defamation. The defendant claimed absolute privilege on the basis that it was published to the police in their capacity as investigators of crime with the intention that they should make a record of her complaint and use it as part of an investigation and/or prosecution and by analogy to witness statements (see Taylor v Director of the Serious Fraud Office [1999] 2 AC 177. The Court of Appeal ruled that absolute privilege applied and the public interest in victims or witnesses of crime coming forward to the police was more pressing and more important than the protection of the reputation of the person accused of crime. It would be undesirable, for example, if victims of rape, particularly where the alleged perpetrator is a man with substantial resources, were to be deterred by the risk of defamation proceedings from complaining to the police. Qualified privilege was not sufficient protection.

Defamation Act 1996 – ss2-4- Club Costa (UK) plc v Gebhard & Inventory Solutions (UK) Ltd [2008] EWHC 2552, 24/10/08

The claimant was a holiday company selling holiday ownership packages and a member of a group of companies trading under the same brand name. The defendant, G, offered dispute resolution services to consumers who had bought one of the holiday packages. In a telephone conversation with an employee of a company associated with the claimant group G made remarks which were alleged to say that the claimant had engaged in serious criminal conduct and was subject to a current investigation by Europol. G admitted that he had made a mistake about the Europol investigation and proposed to make a qualified offer under s2 of the Defamation Act 1996. In the draft sent G admitted his statement about Europol was wrong but claimed that the other words about criminal conduct referred to a third party company with a similar name to that of the claimant. The defendant relied on the offer of amends as a defence to the claimant's action under s4(2) DA 1996. The claimant argued that the offer should be struck out as it did not comply with the Act as ss2-4 excluded the possibility of an offer of amends accompanied by a reservation – in effect the defendant was saying 'I did not defame you but was referring to a third party but in any event I am willing to apologise.' Tugendhat J held that the offer did not comply with the DA 1996 and was inconsistent with s2(2) & s2(4)(a) – the defendant had to accept that the specific statement had the defamatory meaning contended for and indicate a willingness to apologise and publish a statement of correction. Further in the form presented it was inconsistent with s4(4) DA 1996 in that another 'defence' was being introduced – that the statement did not refer to the claimant – and an offer of amends had to be run as a sole defence.

Defamation Act 1996 – ss2-4 – Tesco Stores Ltd v Guardian News & Media & Others, QBD, Eady J, 29/7/08.

Tesco Stores sued The Guardian newspaper for making allegations that T had engaged in a tax anti-avoidance scheme – in particular to avoid paying corporation tax. T brought a libel action and an action for malicious falsehood. G served a qualified offer of amends under ss2-4 DA 1996 retracting the corporation tax allegation but maintaining an allegation that T had been involved in tax avoidance in relation to paying stamp duty tax. 21 minutes after serving the offer of amends a defence was submitted in relation to this allegation. T neither accepted nor rejected the offer but held it open while seeking to pursue the parallel malicious falsehood allegation. The defendant argued that T should be compelled either to accept or reject the offer of amends and also that the parallel action for malicious falsehood served no useful purpose in the light of the offer of amends and should be struck out. Eady J ruled that T should either accept or reject the offer of amends – to hold it open would be inconsistent with the underlying philosophy of the offer of amends defence to secure a rapid and inexpensive disposal of libel actions. T could reject it and try to prove malice under 4(3) DA 1996. The parallel action for malicious falsehood should be stayed as it added no further substantive remedy in respect of reputation that was not already covered by the main defamation action. The defendant was permitted to amend their pleadings to allege T had sought to avoid stamp duty tax as opposed to corporation tax.

Defamation Act 1996 – s14 – Crossley v Newsquest (Midlands South) Ltd, [2008] EWHC 3054 (QBD), Eady J, 11/12/08.

The claimant had been sued in the County Court by neighbours for nuisance in relation to a system discharging sewage from their property. Three days after the completion of the action the defendant published an article about the hearing but also referred to earlier court hearings which had taken place a few months earlier and the article was accompanied by a photograph with an allegedly 'emotive caption' which the claimant alleged was defamatory, published maliciously and did not accurately reflect the findings of the county court judge in the recent nuisance action. In relation to the article the defendants relied on s14 DA 1996 – that the article was a fair and accurate report of public contemporaneous court proceedings. A master decided that the claim should be struck out as the defendant could rely on the absolute privilege defence in s`14; the plea of malice could not be supported and the words were substantially true and covered by the defence of justification. On appeal Eady J ruled that the defence in s14 was available – a report published 3 days after the trial was contemporaneous and absolute privilege also applied to the incorporation of references to the earlier proceedings as these references were reasonably necessary to give context to the report of the current proceedings and to enable readers to understand the contemporaneous report – the caption was to be treated as an attempt to report fairly and accurately the proceedings and therefore was protected by qualified privilege and there was no realistic prospect of any finding of malice. The caption had to be read as part of the overall article – applying Charleston v News Group Newspapers [1995] 2 AC 65 HL.In the alternative the defendant could rely on the defence of fair comment on a matter of public interest as opinion seemed clearly to be honestly held – Tse Wai Chun Paul v Cheng [2001] EMLR 31 Court of Final Appeal (Hong Kong). In addition it appeared that the action was in substance an attempt to re-litigate the nuisance case and was an abuse of process.

Supreme Court Act 1981 – s69(1)- Gentoo Group Ltd (Formerly Sunderland Housing Co Ltd) & Walls v Hanratty [2008] EWHC (QBD), Eady J, 8/10/08

In this case the claimant, a social housing landlord alleged that via a website, chat forum, newsletters, and leaflets, they had been subjected to a sustained campaign of harassment and defamation. The claimant applied for an order for a trial before a judge alone on the grounds that a substantial number of documents had to be subject to detailed and prolonged scrutiny and this would not be consistent with a 'broad-brush' approach which might be adopted by a lay jury. Eady J ruled that it should be tried before a judge alone despite the presumption in favour of trial by jury in defamation actions – see Aitken v Preston [1997] EMLR 415 (CA Civ Div). There were some 350 documents which would require careful scrutiny and the trial was likely to be prolonged and it would be difficult to direct a jury on the relevant inferences which might have to be drawn in relation to the various categories of documents.

Defamation Act 1996 – s14 – Absolute Privilege - Electronic Commerce (EC Directive) Regulations 2002 reg 19 – Information Service Provider – Hosting a web-site  – Karim v Newsquest Media Group, 29/10/09, Lawtel

K, his mother, and sister had been found to have stolen approximately £860,000 of clients’ money by the Solicitors Disciplinary Tribunal and been struck off the role of solicitors. The defendant published an article on several websites which it hosted describing these events, in relation to which the claimant sued and in relation to several user comments electronically attached to the article by people viewing it.
The court held that the article was protected by absolute by s14 Defamation – as a fair, accurate, and contemporaneous report of the proceedings – the fact that the claimant argued that the money came from other sources was not relevant because this excuse was not presented to the Tribunal by the absent claimant who had not taken part in the proceedings.
As the host of the website, N was entitled to avail itself of the defence under reg.19 because it had not had actual knowledge of any complaint of unlawful activity or information until it was pointed out by K and as soon as the nature of the complaint reached N, the articles complained of were removed, together with the related user comments. It was also clear that the recipient of the service was not acting under the authority or control of the service provider within the meaning of reg.19. (3)

Defamation – Common Law – Reynolds Qualified Privilege Defence – Flood v Times Newspapers [200] EWHC 2375, [2010] EMLR 8

A newspaper published an article suggesting that a police officer was being investigated for alleged corrupt practices.
It was the newspaper that had first raised the issue as to whether the Metropolitan Police were properly, and in a timely manner, investigating the issues. Eventually after a full inquiry the officer was exonerated. The officer sued in relation to the article and to the website archive version.
The archive version had remained uncorrected even after the newspaper became aware of the full exoneration of the officer. The judge held that the article raised serious issues of public interest and was covered by the Reynolds defence – the publication of an article on a matter of public interest after an investigation carried out by the journalists meeting the standard of ‘responsible journalism’. The judge rejected the claimant’s argument that the only reason the matter was being investigated was because of the initiative by the newspaper to raise the issue – having created a matter of public interest they were now seeking to rely on the defence in reporting it. The judge rejected this argument and held that the defence applied. However he held that the defence was not available in relation to the web archive version because ‘responsible journalism’ would have involved a suitable updating of the article to point out the result of the ultimate investigation upholding the officer’s innocence.

Defamation – Common law – Berezovsky v Russian Television and Radio Broadcasting Co [2010] EWHC 476 (QB), 10/3/2010.

The murder of Alexanda Litvinenko in London by plutonium poisoning has given rise to many lurid theories – the UK Government’s view was that it was committed by Russian citizen and has unsuccessfully sought extradition of the alleged suspect. However in Russia the view is that the murder was orchestrated by the exiled Russian oligarch Boris Berezovsky who has been granted political exile in the UK. In an interview on Russian television one of the defendants claimed Berezovsky was a party to a conspiracy to murder Litvinenko, as he knew of a conspiracy by Berezovsky to obtain political asylum in the UK despite the fact that he is wanted on criminal charges in the Russian Federation. The judge concluded that B had made out his case and awarded him £150,000. Attempts by the defendants to introduce B’s generally bad reputation to show he had not reputation to lose were unsuccessful- the judge accepted such general evidence could be introduced to reduce damages but that in fact this general bad reputation had not been demonstrated on the facts.

European Convention on Human Rights Article 10 - Defamation – Budu v BBC [2010] EWHC 616 (QB), Sharp J, 23/3/2010 – Web Archives – Searching producing defamatory snippets of corrected archive four years after publication – action being struck out as abuse of process.

The claimant had a dispute with Cambridgeshire police over his seeking an appointment as head of diversity with them – this concerned, firstly, his immigration status and whether he was in fact an illegal immigrant, and secondly, issues in relation to his security status. This dispute had achieved a certain public notoriety locally and the BBC had placed in the relevant Regional News site three articles outlining these disputes and from which the allegedly defamatory snippets had been taken as a result of a Google search. Shortly after the proceedings were commenced the BBC attached a rider notice to the sites in accordance with the authority of Loutchansky v Times Newspapers Ltd (No 2) [2002] QB 783 which stated that at the time of the original broadcasts B had been given indefinite leave to remain in the UK. The BBC argued that the statements were either not defamatory or true and that in any event they were not liable for the ‘republication’ and that in all the circumstances, including the qualification notices, it would be abuse to allow the proceedings to continue. The judge concluded that after this period of time and in the light of the proper approach adopted by the BBC it would be a disproportionate interference with their ECHR Article 10 rights to allow the action to proceed.

Defamation – Common Law – Fair Comment Defence – British Chiropractic Association V Singh [2010] EWCA Civ 350, 1/4/2010

The common law provides for a qualified privilege defence of fair comment on a matter of public interest. In fact the defence is more accurately called honest comment on a matter of public interest, as the comment need not be fair – it can be a minority view and highly prejudiced, provided that it is honestly held and not activated by malice – the burden of proving malice lies on the claimant. The opinion does not have to be reasonable or balanced, provided it does not sink into mere abuse. In a case which has become a ‘cause celebre’ a science writer Simon Singh was a defendant in a libel action by the BCA who were suing because they argued he had suggested that they supported bogus cures. The whole issue of alternative therapies has been much in the news and pitched people such as the Prince of Wales, who is broadly supportive, against some in the scientific community who suggest there is no empirical evidence to support many of the ‘cures’. At first instance Eady J had ruled that the defence was not available as the claims in relation to support for ‘bogus treatments’ were statements of fact and not of comment – this had caused a media uproar and the case has featured prominently in the demands for major reform of the law of libel. The court observed that the action had effectively closed down the debate on the effectiveness of chiropractic remedies and undoubtedly had had a chilling effect. The Court of Appeal took the view that what was involved here was ‘comment’ and that this phrase should be given a broad meaning in scientific controversies of this nature:

“The present case is not in this class: the material words, however one represents or paraphrases their meaning, are in our judgment expressions of opinion. The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth. Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote:
"I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; …. that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought." That is a pass to which we ought not to come again.” (@ para 23).

The judgment is very supportive of a broad approach to the defence of ‘honest’ comment and should make scientists more willing to enter the fray of discussion in controversial areas.

Defamation Act 1996 – ss2-4 – Offer of Amends procedure – Bowman v MGN Ltd [2010] EWHC 895
The offer of amends procedure is designed for a rapid and expeditious way of settling indefensible libel claims and relatively small claims that would not justify full blown legal proceedings. To encourage rapid settlement the defendant can obtain a substantial discount from the figure that a judge would have awarded after a trial if they make a prompt and full apology, offer to publish a reasonable correction and to pay damages – this can be up to 50% of the potential damages figure – see Nail v News Group Newspapers Ltd [2004] EWCA Civ 1708, [2005] 1 All ER 1040 and Turner v News Group Newspapers Ltd [2006] EWCA Civ 540, [2006] 1 WLR 3469. In this case the defendant had published on their website a suggestion that the claimant, an actor appearing in a well known West End musical, was in a relationship with a named actress. This was untrue and he was in fact in a long-standing relationship with another person. The item was removed after only 27 hours on the website, an apology published, and an unqualified offer of amends made under ss2-4 Defamation Act 1996. The judge regarded the libel as at the lower end of the scale, not much more than some hurtful celebrity gossip. Nevertheless he would have been minded to award £8,500 but because of the rapid apology and offer of amends he would have given a 50% discount, giving a net figure of £4,250.  Unfortunately for the claimant he had earlier refused an offer of £5,000. Thus he had to pay the costs from the point of that refusal despite having ‘won’ the case. The case is therefore important in that claimants, in assessing whether to accept or reject an initial offer to settle, must factor in any likely discount the judge might be inclined to permit under the offer of amends procedure.

Limitation Act 1980 – ss4A-32A – Kaschke v Osler [2010] EWHC 1075, 13 May 2010

There is a short limitation period for bringing defamation actions – 12 months from the date of the relevant publication (s4A Limitation Act 1980) but with a discretion to disapply the period (s32A Limitation Act 1980). The ‘blogosphere’ and social networking sites such as Twitter and Facebook etc have become a significant forum for debate, discussion, rumour, and settling of scores – if the traditional media is the fourth estate the ‘blogosphere’ might be described as the ‘fifth estate’. The defendant blogger on his site published a blog ‘Respect member’s Baader-Meinhof Link’ (the claimant having defected from New Labour to the Respect Party) about the claimant - in this case a naturalized British citizen originally from Germany had been arrested in the 1970s and charged with support of the notorious terrorist Baader-Meinhof group. The blog stated that she had been released and compensated for wrongful arrest and imprisonment and quoted her as being opposed to terrorism. Nevertheless the claimant took exception to the blog claiming that overall it was attempting to smear her and to connect her to terrorism. The defendant gave her a right of reply on the blog and removed the article. Over 12 months after the article was published and 11 months after the blog was withdrawn an action was commenced. The substantive claim was struck out as an abuse of process under the principle enunciated in Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75, [2005] QB 946 as a disproportionate waste of time and costs, given the nature of the alleged libel and the letter from the claimant published on the site along with the retraction of the defendant and the insignificant damage done to the claimant.
Further no solid reason had been advanced to justify disapplying the tight limitation period imposed by Parliament. She could not identify any specific publications within the period – see Amoudi v Brisard [2007] 1 WLR 113. If there were any publications within the period they were so insignificant as not to justify allowing the action to proceed.

Common law – Distinction between libel and slander – Sanders v Percy & Ministry of Justice [2009] EWHC 1870 (QB)

Historic distinctions between written defamation (libel) and spoken defamation (slander) continue to remain important. One of the key distinctions, is that subject the Slander of Women Act 1891, libel is actionable per se and slander is not – in other words in the case of libel, damage will be presumed to have occurred – though of course there may be serious disputes as to the quantum or amount – but in the case of slander actionable damage must be proved. In this case which combined claims for slander, harassment, and breach of confidence it was alleged that a court officer of a county court had informed the claimant’s solicitor, in connection with unrelated proceedings, that the claimant was a vexatious litigant, that he worked as an Ali G impersonator, despite not looking like Ali G, that he was a ‘chancer’, that he drove a car without a valid tax disc, and that he should be reported for benefit fraud. The judge struck out all these allegations, save those as to benefit fraud, on the grounds that no actionable damage had been pleaded and slander was not actionable per se. In the case the slander was not actionable because of allegedly potential impacts on the claimant’s business and the judge saw no reasonable belief that there would be any.

Common law – Republication – Whether original publisher of allegedly defamatory statement can be liable for additional damages caused by republication by a third party – Baturina v Times Newspaper [2010] EWHC 696 (QB)

The wife of the Mayor of Moscow, a Russian businesswoman, was suing The Times Newspaper for publishing in their newspaper and on their website allegations that she had been involved in acquiring property in the UK using a nominee offshore company to disguise the fact, in order to avoid having to declare, under Russian law as the spouse of a public official, that she had purchased the property. The allegations had been republished in Russian on a number of Russian websites, and some added further innuendo and comment about the situation. The original article has not specifically referred to the Russian Presidential Decree on declaration of ownership in such cases. A number of the websites had however made explicit references to the decree. The defendant argued that these re-publications should be regarded as separate and independent acts.
Applying the law as set out in Slipper v BBC [1991] 1 QB 263 CA (Civ Div) and McManus v Beckham [2002] EWCA Civ 939, [2002] 1 WLR 2982 and Collins Stewart Ltd v Financial Times (no 2) [2005] EWHC 262 (QB), (2006) EMLR 5, the question to ask was whether a person in the defendant’s position could reasonably anticipate that there was a significant risk of repetition either in whole or in part, in the media and on the internet of the offending publication. In this case there was but the defendant should not be liable for allegations going beyond those contained in the original publication – while T’s publication was the cause of further publications, that was not sufficient to render them liable. A number of articles and web-based blogs which went beyond the original allegedly defamatory allegations had to be regarded as within the principle of ‘novus actus interveniens’, and therefore as independent and unconnected articles.

Common Law – Liability of Intermediary publisher – Hays Plc v Jonathan Hartley [2010] EWHC 1068 (QB)
Under the law of defamation not only the original author and publisher of the defamatory statement may be liable in tort but also any other party in the distribution chain who re-publishes the e-mail subject to the defence set out in s1 Defamation Act 1996 or the common law defence of ‘innocent publication’. In this case an action was brought against an intermediary press agent. The defendant press agent invited stories from members of the public to supply to newspapers and other publishers. In this case he communicated allegations of serious racism in relation to three employees of the claimant company to a journalist on a national newspaper. The newspaper later published an article containing the allegedly defamatory allegations. The company sued the employees for making the allegations and a settlement was reached and a public statement agreed to the effect that these allegations were unfounded. This statement was added to the online version of the article published by the newspaper. The claimant brought a separate action for publication of the information by the press agent to the journalist, seeking £5,000 damages and an agreement not to repeat the allegations. The defendant claimed qualified privilege but stated he had no intention of repeating the original allegations. The press agent sought to get the action struck out on the grounds that it was not a real and substantial tort and was brought the collateral purpose for obtaining evidence in relation to the claims against the employees (following the principles laid down in Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75, [2005] QB 946). The judge rejected the claim that the action was for collateral purposes – this was a legitimate claim but given the vindication already achieved and the undertaking not to repeat the allegation any continuance of the action would not be legitimate or proportionate and should be struck out.