Defamation cases down due to Leveson and privacy laws

Defamation cases fell by 15 per cent in the past year due to the scrutiny of the media and an increasing use of privacy law, research suggests.

There were 71 defamation court cases in the 12 months up to 31 May 2012 – compared to 84 in the previous year.

The figures, compiled by legal researcher Sweet & Maxwell, show there is a lower appetite for risk among journalists, said David Price partner Korieh Duodu.

He said: “Phone hacking has put journalistic standards under the microscope like never before. Media companies are concerned that the phone hacking scandal could lead to the imposition of a statutory media standards regulator, and they are have made every effort to put their own houses in order to avoid this.

“That will mean a more conciliatory, less controversial approach and fewer defamation cases.”

The rise of injunctions, such as in the Ryan Giggs and John Terry cases, is another factor, said Duodu, with celebrities looking to “stamp out” negative stories before they are published.

“Privacy injunctions became increasingly fashionable as they could prevent damaging articles from ever seeing the light of day. By contrast, defamation law cannot generally be used to prevent allegations being published, but only to set the record straight through an action for damages after the event. This made the privacy injunction an extremely powerful legal tool for individuals in the media spotlight. The other advantage of a privacy claim is the ability to kill stories which are true,” he added.

Another media partner agreed that injunctions are the only truly practical remedy because no amount of damages can make a story private again once published.

He said the tabloid press “attack” on injunctions last year has left the system in a state of flux, as shown by Schillings’ partner John Kelly’s recent failed injunction application on behalf of Steve McClaren. But the partner believed that the privacy versus public interest debate will level out again (20 August 2012).

However, Simons Muirhead & Burton partner Louis Charalambous said he thought “the landscape has changed” on privacy law.

Duodu added: “Tactics are changing as a result of recent rulings. New court procedures and cases such as Giggs and Terry have demonstrated that it will in future be more difficult to get anonymity orders keeping the identities of parties confidential. It will also be exceedingly rare to get so-called ‘super injunctions’, when even the existence of the injunction cannot be reported.

“The Giggs and Terry cases unraveled following public hearings at which judges dismissed the injunction claims, deciding that the strict criteria for maintaining the injunction were not met. Such cases have demonstrated painfully for those clients how privacy injunctions can backfire by increasing the public’s interest in the very story that the individual is trying to quash.”

The statistics show there were just seven defamation cases involving celebrities during the year – the lowest in five years. Amongst those filing claims in the last 12 months were Imogen Thomas, Welsh singer Charlotte Church, Morrissey, and Nancy Dell’Olio (12 March 2012).

Other individuals in defamation courts were Lord Ashcroft, Russian businessman Boris Berezovsky and financier Nat Rothschild.

There was also a 36 per cent drop in the number of cases against traditional media companies like newspapers and broadcasters, which reached a five-year low of just 27 cases.

Duodo said recent case precedent makes it easier for defendants to run defences of ‘responsible journalism’ or ‘comment’.

He said: “More claimants are being advised that their case may not be strong enough, even though it may well have succeeded previously.”