This article by Adam Tudor was first published in The Times on 27 November 2014.
Plebgate is back. Last Monday former Tory chief whip Andrew Mitchell’s libel trial against The Sun began in Court 13 of the Royal Courts of Justice. What was and wasn’t said at Downing Street’s security gates on the evening of September 19, 2012, in a confrontation between Mitchell and PC Toby Rowland, will also be tested in an accompanying libel action by Rowland against Mitchell.
Already a saga with twists and turns, Plebgate now has the hallmarks of the great showpiece libel trials of yesteryear. But one thing will be missing: a jury. This is a trial by judge alone, and thanks to the Defamation Act 2013, it is likely we will never again see a trial by jury in the libel courts — a constitutional shift ending what had been a near-sacrosanct principle for more than two centuries.
So how else has the act changed to the libel landscape? The act came into force on January 1 this year. At first blush, it is a sensible nod to the plain English lobby. The old defence of “justification” became “truth” and “fair comment” morphed into “honest opinion”. Another user-friendly change is the consolidation of judge-made common law into the defence of “publication on a matter of public interest”, which replaces the Reynolds defence (named after a ground-breaking 2001 case involving Albert Reynolds, the former Irish prime minister, which The Sunday Times defended all the way to the House of Lords).
But the act is about more than merely relabelling. A key change is that now, to establish that a statement is defamatory, it is necessary for a claimant to show that a defamatory statement has caused or is likely to cause “serious harm” to their reputation. This is a real shift: previously, damage was presumed.
Every bit as significant is the impact of the act on companies. Now, regardless of how grave the allegations against them, they can only sue if they can show that the article in question has caused or is likely to cause “serious financial loss”.
The act also provides a framework to give added protection to the hosts of internet discussion boards while preserving the right of those libelled on such boards to bring a claim if the offending material is not removed. To combat the perceived danger of “libel tourism”, there are jurisdictional changes that make it harder for overseas claimants to sue unless they can show that England and Wales is the most appropriate place to do so.
What impact have the changes had at the coalface? It is still too early to form a definitive view, but there is little doubt that the new “serious harm” test and changes to the rights of companies to sue will reduce the number of defamation claims that end up at trial. Yet reputation is as important to companies and individuals as ever: witness, at the same time as the decline in full-blown libel litigation, a marked increase in clients instructing media lawyers to go into bat before a story is published or broadcast, often working with the client’s PR advisers as part of a reputation-management strategy.
And while statistics for 2013 indicated that libel claims issued at court were at an all-time low, the number of cases so far this year are reported to be nearly 25 per cent higher than in 2013. The increase is in large part down to the number of libel claims arising out of social media.
So if full-blown claims against “old” media are likely to decline, libel lawyers are not going out of business. Their attention is increasingly turning not just to defamation via social media but to a burgeoning new battleground: that of cyber-bullying and trolling.
Twitter, Facebook and other social media sites provide users with an all-too-easy forum for publishing serious libels and, worse, hate speech. The past year has highlighted the dark side of social media, with people seemingly only too willing to abuse and harass others (often anonymously or using a false name) on the assumption that they will never be brought to account. At its most extreme is the case of Brenda Leyland, the 63-year-old who, having been outed by Sky News over her malicious campaign against the parents of Madeleine McCann, took her own life.
Thankfully, the law enforcement agencies and courts are starting to treat hate campaigns more seriously. They are increasingly willing to use powers under the Protection from Harassment Act 1997, the Malicious Communications Act 1988 and the Communications Act 2003, which make it a criminal offence to send an electronic communication (including tweets) in any form that is grossly offensive, threatening and which is intended to cause distress to the recipient. High-profile cases this year have included the jailing of a man who persistently intimidated MP Stella Creasy; so too the imprisonment of a man for 16 months for repeatedly posting racist and threatening remarks.
The changes wrought by the Defamation Act are profound and important; libel lawyers are likely to be kept busy for some time as the new regime beds in. But if trials such as Plebgate will remain the exception, there are sure to be more court cases (both criminal and civil) over cyber-bullying and trolling, a distasteful and all too often dangerous facet of modern life which, regrettably, seems here to stay.