IT adds to potential libel damages
15 November 1999
20 April 2009
20 November 2012
10 February 2012
28 November 2012
19 February 2007
Consider the following scenario. A sensational and defamatory article concerning a music band which plans to release a new album and promote a tour, appears in a UK tabloid.
Within 24 hours the article appears in numerous overseas newspapers in overseas jurisdictions, but most likely in those countries in which the celebrities fan-base is particularly strong.
The damage is exacerbated by the almost instantaneous electronic exchange of the allegation by fans themselves and broadcast on 24-hour cable TV shows.
What started as a UK tabloid story, has become an internationally repeated defamatory allegation.
The UK newspaper will argue that it could not have controlled the overseas media in deciding to republish its original article.
Can this be correct where a UK originator syndicates its edition of the newspaper, or makes the article available on the wire? What is the position if that UK newspaper is immediately notified of a potential action, but decides not to take instant steps to withdraw its availability in this manner?
It may be suggested that if it is to be held responsible for damage on such a large scale, its right of freedom of expression will be severely fettered. But is this really the case when the article has already been published and is subsequently proved or acknowledged by the UK newspaper to have been defamatory? The issue surely is one of compensation, and has no bearing on restriction of publication.
Causation and remoteness of damage will be raised, and the celebrities might be reminded that they can take action in each overseas jurisdiction if they wish.
International litigation on several fronts would be a costly process. Under the "double actionability rule", the overseas publication must show that an action could not be brought against it in the overseas jurisdiction arising out of publication in that country. It is not feasible to react to every re-publication.
The thought of holding their own fans responsible for the unwitting dissemination of the article is, quite naturally, out of the question.
While any subsequent apology or statement in open court may itself, for the same reasons as above, receive similar immediate international dissemination, there can be no certainty that it will and, argue some, the harm has already been done.
The existing rule must be applied in today's conditions, namely that it was a natural and probable and/or foreseeable consequence that the sting of the words would be re-published in foreign media and over the internet.
I find it hard to accept that today's editors are unable to foresee the natural or probable consequence of their actions. In my view, the newspaper must be held responsible in aggravated damages for their defamatory article.
The above scenario is today plainly a natural and probable and/or foreseeable consequence when targeting a celebrity, and for others perhaps, depending upon the status and extent of their reputation. It is not an unusual phenomenon.
To the extent that it is argued that such a scenario was not foreseeable before, it most certainly is now.
If, as a result of increased damages, newspapers must be extra cautious when researching their articles on well-known stars with international following, then is this such a bad thing?
As the law desires to be flexible enough to remain abreast of developments in communication, then this is an issue which, while provocative to media organisations who might accuse me of being a "New Media Romantic", deserves serious debate.
Simon Smith is a partner at London media firm Schilling & Lom and Partners and recently acted for Duran Duran in its successful libel action against The Sun newspaper.