Media law

Defamation is not dead

IBC's annual conference 'Protecting the Media', is attended by private practitioners and in-house lawyers practising in the media field who attend to be up-dated on all aspects of media law.

Topics include favourites such as developments in copyright, contempt and procedural issues, to new kids on the block such as conditional fee agreements and privacy and data protection.

With such an array of topics on the agenda, one could be forgiven for thinking that the old faithful, defamation, might go out of fashion.

But in her round-up of recent developments in domestic defamation law, barrister Heather Rogers of Matrix Chambers suggested otherwise.

'There have been so many developments in data protection, confidence and privacy that defamation might look like Cinderella left at home cleaning out the grate,' she said, before continuing: 'But then, look what happened to her.'

One of the matters considered likely to impact largely on the number of defamation cases brought was the expectation that damages would be lowered significantly, or perhaps so drastically as to price libel litigation out of the market as a viable option.

Judicial eyebrows had been raised with regard to inappropriately high damages awards in the 1990s.

Damages in defamation cases are 'at large', meaning that, historically, the jury decides them with no guidance or reference.

And 'at large', often meant just that, large.

But the Court of Appeal decision in Rantzen v MGN [1994] QB 670 and John v MGN [1997] QB 586, set some framework by suggesting brackets for awards be given to the jury and reference be made to awards in personal injury cases.

This would add to the already existing power of section 8 of the Courts and Legal Services Act 1990, which allows for the Court of Appeal to impose its own award of damages rather than remitting the matter back to the lower court, where the initial award was 'excessive'.

It was hoped that over time, a body of Court of Appeal case law would help give a sensible and accessible tariff for defamation cases.

As a result of these changes, telephone number-type awards are no longer being made, but the drop in damages awards has not been as radical as defendants might have hoped, nor claimants feared.

While, additionally, the body of case law has not been as substantial as might have been expected, this year has seen two Court of Appeal cases that have added to that body, while other first instance decisions have evidenced that relatively high awards are not out of the question.

In Kiam v MGN, the late entrepreneur Victor ('I liked it so much I bought the company') Kiam brought proceedings over allegations in the Mirror that, effectively, he was now fit only for retirement.

The first instance judge suggested a bracket of between 40,000 and 80,000 damages, but the jury picked its own higher figure of 105,000.

The paper appealed.

The Court of Appeal judgment is a useful discussion of previous Court of Appeal decisions over the past ten years.

But analysing those, it held that it should only interfere where the award substantially exceeded 'the most that any jury could reasonably have thought appropriate'.

It held that the jury's award was not widely off the mark (although the difference of 25,000 from the judge's high point would appear to be a fair amount of money, in fact about the sum awarded in personal injury cases for the loss of an eye under the personal injury guidelines).

The Court of Appeal did not interfere with the award.

Dissenting, Lord Justice Sedley thought that 60,000, squarely between the two bracket figures, was the most that the jury should have awarded.

A desire to deter future libels would be better achieved, he thought, by Parliamentary action rather than high damages.

The Court of Appeal did intervene in the case of Campbell v News Group Newspapers, 31 July 2002, (2002) EWCA Civ 1143, reducing an award from 350,000 to a mere 30,000.

While it is true that the libel was a serious one, alleging that the claimant was an active paedophile, the claimant's 'disreputable conduct', including (although the Court of Appeal had not seen the witnesses) procuring false witness statements, had the effect of reducing the damages (although notably not denying him of any damages at all).

Interestingly, these two cases would seem to indicate that perhaps a defendant is better off where a jury awards a large amount of damages, giving rise to the potential of a successful appeal.

A lower award, only just off the mark, is likely not to be touched by the Court of Appeal.

In addition to the Court of Appeal's portfolio of awards, are the first instance decisions which help practitioners to analyse quantum.

Of course, many - in fact the majority - of cases are settled prior to trial so sums on settlement do not make up any helpful precedent and are often not even made public.

But one important first instance award is that in Lillie and Reid v Newcastle City Council in respect of the two nurses falsely accused of serious child abuse.

They were awarded what is considered to be maximum damages of 200,000 each.

The maximum is an increase from the previous threshold of 150,000.

These cases appear to show that the British courts are still prepared to penalise newspapers for publishing false and defamatory articles and to compensate claimants with fairly substantial sums.

In conclusion, it would appear, as Heather Rogers put it, that 'with damages like these people would still bother to take libel proceedings'.

Therefore, rather than a decline in libel litigation, it would seem that if defamation is the Cinderella of the media world: she will still go to the ball.

By Amber Melville-Brown, Schillings, London