Sunday, April 28, 2013 media law changes comms people need to know
Do you have a battered copy of McNae's Essential Law for Journalists on your desk? Many public relations people do. Thing is after a busy few weeks much of it is obsolete. In this post a media law expert runs comms people through some of the key headlines they need to know.
By David Banks
During the past week a significant shift happened in the lives of journalists in the UK.
The Defamation Bill finally passed, and when given the Royal Assent and fully implemented it will make a huge difference to anyone publishing here because of one key clause.
This bars companies, or non-natural persons as the Bill calls them, from bringing libel actions unless they can show substantial financial loss as a result of what was published.
This is a major hurdle for companies and corporations. You only have to look at one of the most notorious libel actions of recent years, the McLibel trial in which McDonalds sued two member of London Greenpeace in a case that lasted two and half years. Such an action would fail at the first hurdle now because McDonalds would not be able to show the activists’ leaflets had caused substantial loss.
So the implications for journalists, and for companies intent on protecting reputation are significant.
In my experience as a regional journalist, libel laws were frequently used by companies and other organisations to chill free speech. When certain companies were featured in the pages of papers I worked for, it was almost inevitable that a threatening letter would follow, claiming defamatory content.
The effect of this, over time, is to discourage negative coverage of that organisation because of the cost in money and time involved.
A move to include local authorities in in this provision failed, but the ‘Derbyshire principle’ established when Derbyshire County Council was denied a libel action against The Times, remains. The courts do not allow local authorities to sue as an entity themselves – so you can’t libel a council.
A word of caution to those who think this gives carte blanche to say what one likes about a local authority. You must remember that you can be sued for the plain meaning of your publication, and any implications it might have. It is perfectly possible in criticising a local authority, to imply something defamatory about an officer, or group of officers, on that council.
As I point out in my sessions with journalists and local authority comms staff, that officer, or officers, could bring a libel action as individuals and in some cases local authorities have funded them.
As a member of the Ministry of Justice working party established back in 2010 to look at libel reform, which set the wheels in motion for the reform we have now, I am very happy to see the outcome.
But if you are publishing in the UK, libel remains our most expensive legal danger, and even with reform it will remain so for some time yet.
David Banks is a media law consultant who works with a range of media organisations and comms teams in the public, private sector and third sector. He produces a free, monthly email bulletin on media law and you can subscribe here.
Reader Comments (3)
There is one very very crucial point left out from this posting. Although the Defamation Act has been passed , it does not come into effect until the creation of a Statutory Instruumenet by the relevant minister.
Until this happens we still have the old libel laws with all of their problems.
Thanks Neil, I think I alluded to that fact in the second par when I said 'when fully implemented', but you are right, until it is, we are stuck with libel as it is currently framed.
The next hurdle I think is trying to encourage better case management for libel cases so those with clearly no merit are dismissed straight away. Hopefully some of the new laws will have this affect anyway. However, when you come across cases that are branded 'simply hopeless' in a hearing in 2008 and a dozen hearings later in 2011 are still continuing, something is wrong.
It is odd because judges seem to be (rightly in my view) dismissing some cases without studying the words because there was no damage in any event or the claimant has been compensated already (as in multiple defendant cases) but allowing others to drag out for ages. Is there a two tier justice system for rich and powerful libel litigants? Are these libel cases still considered to be a battle between the rich, for the parties to slug it out and the judge to act as referee - which incidentally is against the spirit and intention of the Civil Procedure Rules? For example, based on previous precedant on over-compensation and multiple defendant cases, surely McAlpine should not have got past a first hearing. This has to be a logical conclusion based on the fact that any damage caused by all the participants (police, BBC, Twitter community) need to be viewed as a whole and not as though one individual's sole tweet was the only cause of damage. Also unless the judge is going to award the highest libel damages ever, surely the £310,000 compensation to date has to be highly relevant and considered along with the totality of the tweets/allegations at the earliest opportunity.
Lots of work to do still I think.