'Lawfare' critics overstate their case

Not for the first time, I disagree with David Davis. The honourable member for Haltemprice and Howden has been making waves in the press recently, stating that the law is being used by wealthy individuals to intimidate British journalists and media organisations. Using what he terms ‘lawfare’, these individuals are said to prolifically litigate against the press to such an extent that certain topics are not covered in newspapers out of fear that they will be sued, and in some cases, that state security is undermined by allowing individual litigants to act as extensions of foreign powers. 

There is no question that freedom of speech, and the freedom to lawfully report on matters, is critical in any democratic society. However, I believe that Davis is overstating the position. First, most people would assume (particularly in light of Davis’ comments) that the number of defamation cases brought each year in England and Wales is significantly higher than it actually is. According to the Ministry of Justice, the total number of defamation cases issued in 2020 was 152.

This is not an artificially low number as a result of the pandemic. It is consistent with longer-term data, which shows that since 2009 (when records were first kept) the average number of defamation cases issued each year is 164. According to an article published on the Inforrm blog, of the 152 cases issued in 2020, just 21 were brought against national newspapers. As that article states: ‘The “typical” defendant in a libel claim is far more likely to be an ordinary individual, rather than a media outlet or a journalist.’ It follows that, based on the MoJ numbers, any insinuation that defamation cases are proliferating (particularly against national newspapers) appears to be misguided. 

Of course, litigation of the type referenced by Davis is not limited to defamation and can encompass areas such as privacy and anti-harassment, so the number of defamation cases does not necessarily tell the whole story. But given that many of the complaints received by a newspaper are likely to reference defamation, it is nonetheless indicative.

So, one might ask, is there a problem at all? I acknowledge that at any moment in time, there are likely to be certain examples that can be held up and said to be examples of unfair tactics or behaviour. In such cases, people’s sympathy will often be directed towards the journalist or media organisation in question, although often this might be as much to do with impressions that have been shaped by the media themselves rather than the specific facts of the matter, which are often not examined with care before opinions are shared as to the rights and wrongs of bringing the case in question.

Ultimately, the law as it stands is intended to provide a remedy to people in circumstances where they find that their reputation has been caused serious harm as a result of a third party publishing false information about them; or that their private information has been misused where there is no legitimate public interest justification; or that they are suffering from repeated harassment.

Various defences may be available to a potential defendant which are designed to protect those who are responsibly reporting on a matter of public interest or voicing an opinion based on the existing facts. To me, this seems an entirely appropriate starting point in law. We should be extremely cautious before implementing changes that impede access to justice or that make it overly burdensome for people or companies to seek to protect and enforce their legal rights.

It should be remembered that much of the press have a considerable bias in relation to such matters, and a bully pulpit from which they can project their views. There have already been significant shifts in this area of law which have made it harder for people to try to enforce their rights in this area (such as also making it much more difficult to obtain funding arrangements such as no-win, no-fee agreements from lawyers, and changes that were implemented in the Defamation Act 2013). It is somewhat ironic that certain sections of the press seek to portray themselves as underdogs, when in reality they are often owned by wealthy individuals and companies. Generally speaking, mainstream publishers will be considerably wealthier than the claimants who pursue them. Furthermore, the financial risk to any publisher becomes most significant only if a court determines after proper examination that what was published was indeed unlawful. In this scenario, of course, it would have been demonstrated on the balance of probabilities that it was right for a claimant to have pursued their case in the first place.  

Undoubtedly the legal process is expensive, but sufficient checks and balances arguably already exist to protect the parties. These include summary judgment, the early determination of meaning, costs budgeting, the intervention of the courts throughout the process to ensure fair play, and, ultimately, control over what costs are awarded, if any, at each stage including at the end of a case.

In short, there is a real danger that attempting to restrict access to justice on the basis of a person’s wealth, a perception that they do not have clean hands, or what one side believes are ulterior motives for bringing the litigation in the first place, cannot and will not lead to a good outcome. While I do not doubt that Davis and those who support him have good intentions, I hope that any debate on this issue is appropriately balanced, and that policy makers will be suitably cautious before making any changes that restrict proper access to justice. 

Jon Oakley is a partner at Simkins, a specialist reputation, media and entertainment law firm in London