Partner - Hassans International Law Firm Limited
Defamation, Privacy and Data Protection
Contributor: Darren Martinez (Partner, Hassans International Law Firm Limited)
Defamation and privacy claims are primarily civil law matters. However, the Defamation Act does provide for a statutory offence of malicious libel which applies when a person maliciously publishes any defamatory libel, knowing the same to be false. The penalty on conviction is imprisonment for up to two years and a fine. Such proceedings are very similar in nature to those that could formerly be brought in England and Wales. To the best of our knowledge there are no recent reported cases of prosecution of this offence.
The limitation period for defamation claims in Gibraltar is 6 years. In a recent case before the Supreme Court of Gibraltar, an argument was advanced that given the reduction in the limitation period in England and Wales since the enactment of the English Defamation Act 1996 and the policy reason for this being the expeditious vindication of reputation, the limitation period in Gibraltar should reflect the English and Welsh position. This was rejected by the Supreme Court which held that the limitation period in Gibraltar remains six years.
The substantive law regarding what must be proved to succeed in an action is governed by common law principles. In both libel and slander cases it is necessary to show that the defamatory statement was published of and concerning the claimant’s reputation. The communication needs to:
For the content of the communication to be considered defamatory it must satisfy the Sim v Stretch test whereby it must lower the claimant in the estimation of right-thinking members of society generally.
The burden of proof in relation to proving the elements of the claim (as set out above) falls on the claimant. Since falsity of a statement is not one of the elements of the tort of defamation, there is no requirement for the claimant to prove the falsity of a statement which is presumed. In fact, the burden to prove that a statement is true falls on the defendant. This is also the position in relation the other defences as set out below.
It is open for a defendant to argue that a statement is true. A defendant can also argue that the statement does not refer to the claimant or is not defamatory in nature.
Newspapers also have the benefit of statutory defences of absolute privilege for fair and accurate reports of court proceedings, qualified privilege, and publication without malice or gross negligence coupled with publication or offer of apology.
In the case of absolute privilege for newspapers, it should be noted that the scope of the privilege afforded to newspapers is limited territorially ‘only to courts exercising judicial authority within Gibraltar’.
It is also open to a defendant to show that an offer of amends has been made, but only for unintentional defamation. The offer must be accompanied by an affidavit specifying the facts relied upon to show innocent publication.
Gibraltar Parliament publications are protected in civil and criminal proceedings with any such proceedings to be stayed if a defendant shows that they are being commenced or in respect of such publications.
As in England and Wales, a defendant can also avail himself of the common law defences of, inter alia, justification (truth), honest comment and consent to publication. The position in Gibraltar is in many ways similar to the UK position under the common law before the Defamation Act 2013 came into force.
There have been recent developments in this area. In relation to privacy, the Gibraltar Constitution does not provide for jury trials. Further, there is no constitutional right to jury trials in defamation cases but in a very recent case in the Supreme Court of Gibraltar, the court has held that there is a right to a jury trial in defamation cases.
The Defendants in this case argued that whilst legislative developments have taken place in England that have made the right to jury trials in defamation claims the exception rather than the norm, the position in Gibraltar reflected the position in England & Wales prior to these reforms. Namely, that a party to a defamation claim is entitled to a jury trial. It was on this basis that the Defendants made an application for a trial by jury in the claim. The court accepted that a party to a defamation claim in Gibraltar could elect for trial by jury. The first instance judgment was appealed to the Court of appeal for Gibraltar who confirmed that a defamation claim in Gibraltar may be heard by a jury.
A successful claimant is entitled to compensatory damages, and depending on the circumstances, may also be entitled to special, aggravated, and exemplary damages. The claimant may also seek an injunction to prevent further publication of the defamatory statement (this is commonly sought). It is open to the defendant to offer an apology in mitigation of damages caused to the claimant (see section 27 of the Defamation Act).
The approach to damages is the same as in the UK, with the widely accepted maximum level of damages being in the region of £300,000. An example of the Gibraltar court adopting the same approach to damages as in the UK can be seen in the case of The Hon. Fabian Picardo v Sindicato Collective de Funcionarios Publicos Manos Limpias and others.
Section 7 of the Gibraltar Constitution order provides that “Every person has the right to respect for his private and family life, his home and his correspondence”. Section 16 provides the Supreme Court with jurisdiction to hear and determine applications made in respect of contravention of the foregoing protective provisions.
Section 10 of the Gibraltar Constitution protects the right to freedom of expression. If the court determines that a party’s rights are engaged either under Section 7 or Section 10 of the Gibraltar Constitution Order, then it must undertake a balancing exercise. It is a question of weighing the competing rights and forming a judgment on the unique facts of each case. When deciding these cases, the Constitution requires the Supreme Court to consider any decision of the European Court of Human Rights which is relevant.
The Supreme Court of Gibraltar recently heard a case where such balancing exercise had to be carried out. An interim injunction was sought and ordered by the court.
The Data Protection legislative framework in Gibraltar is made up of the following:
Contributor: Darren Martinez (Partner)
Hassans International Law Firm Limited
PO Box 199
Gibraltar, GX11 1AA
The material in this Guide is for general information only and does not constitute legal advice.
SEE MORE INTERNATIONAL MEDIA LAW GUIDES