The annual Judicial Statistics, released in June, showed a 60% increase in defamation claims in 2014. Judith Townend, Director of the Information Law and Policy Centre, based at the Institute of Advanced Legal Studies, investigates the implications for defamation law development, taking into account recent data protection case law such as the ‘right to be forgotten.’
A marked spike in defamation claims for 2014 seems to have surprised some people, given recent developments around defamation law and introduction of a new Act that the previous government boldly claimed would ‘reverse’ the chilling effect.
It could be that the new Act’s impact is yet to be felt; Carter-Ruck’s Nigel Tait suggests that this rise occurred “before the effects of the Defamation Act kicked in”. Despite the increase (a “blip”?), it has been argued that defamation is being replaced or supplemented by other legal remedies (see, for example, Rhory Robertson here).
Is Data Protection the new Defamation?
At a conference at the University of Winchester in April, I asked ‘Is Data Protection the New Defamation?’, inspired by tweets I’d seen (for example: here and here), and a report in the Economist describing a ‘new front’ in media law. I asked the question in relation to news media and journalism, as these anecdotal observations differed from what I’d found in 2012-13 when I conducted several surveys among journalists and bloggers and interviewed numerous media lawyers and media law specialists. It was observed at the time that the Data Protection Act 1998 was playing a new role in defamation but my research indicated that the civil actions relating to defamation and Article 8 of the Human Rights Act dominated media lawyers’ concerns about journalistic content, along with contempt and to a limited extent, copyright. A lack of concern with data protection could be explained, I thought, by the Section 32 exemption.
Since then, the picture has changed somewhat in relation to both Article 8 and the Data Protection Act: news organisations have raised concerns about the treatment of online search results, following the ECJ’s decision in Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González; the relationship between data protection and journalism was addressed in Steinmetz and others v Global Witness Limited; misuse of private information was recognised as a tort in Google Inc v Vidal-Hall & Ors  EWCA Civ 311, a case which also allowed that there can be a claim for compensation without pecuniary loss under the Data Protection Act; and following the Leveson Inquiry, the ICO has issued new guidance for the media.
But how to show the changes in (a) the number and nature of claims and complaints against publishers, and (b) the impact on news publishers and journalism? The problem is – as I have argued before – that there is a dearth of data about defamation and therefore it is very difficult to systematically and accurately monitor patterns of communication behaviour and legal action.
A lack of official court data
All of we know of this year’s spike in cases is an overall number of claims registered in the Royal Courts of Justice Queen’s Bench division, classified as ‘defamation’ (now buried away in a quarterly report). No breakdown of outcomes is given, nor a list of case names and claim details. Individual claim forms can be accessed for a fee, if the claim number is known (from a report, one of the parties, Lawtel, or by looking at the RCJ’s lever arch folders containing the lists), but proper analysis requires bulk access which I haven’t been able to negotiate (yet).
Often when requesting data from lawyers I have been directed to Inforrm’s case tables and reports: these and the PA Media Lawyer reports (a subscription service but its stories are often published or used by other news sites), give us a fairly good picture of courts activity. Nonetheless, the official source data is severely lacking as has been noted in a number of committee reports and government documents.
The rise of defamation cases in 2014 doesn’t tell us much at all about the actual impact of defamation on journalism and public interest reporting: how many of those cases related to the media, or journalistic type activity; and how many were between two private individuals? What happened to the claims in court, how many settled out of court, and in whose favour?
The challenges of measuring the development of defamation law
There is a similar lack of data on breach of privacy/misuse of private information cases with inconsistencies observed about the Ministry of Justice’s regular updates on privacy-related injunctions. And of course, the defamation and privacy data reports only include claims actually filed in court: what about all those complaints which result in an out-of-court settlement but are never formally brought as a claim?
And what do we know of data protection? With regard to the handling of ‘right to be forgotten’ complaints post-Google Spain, we have been given a little information by Google, but it’s far from adequate – the Guardian has recently uncovered richer detail about the nature of requests, but as Julia Powles notes here, Google said it was “test” categorisation of data, which was not considered reliable enough to release publicly.
The ICO has reported a surprisingly small number of requests for de-listing in its 2014/15 annual report (120 successfully dealt with). Tribunal decisions can be found online here (and can be filtered by data protection), quarterly Tribunal statistics are here, but as with defamation, overall data for data protection cases and outcomes appears patchy (suggestions for further research would be welcome).
Without solid data on court and out-of-court interactions on defamation and data protection we’re almost solely reliant on lawyers’ and journalists’ perceptions, and monitoring a minority of reported claims and cases. Those sources are very important but shouldn’t be the only measure for the development of informed legal policymaking on reputation, privacy and freedom of expression.
And yes, the title of this post is based on a misquotation: it seemed apt, somehow.
This post originally appeared on Inforrm’s blog and has been reproduced here with permission and thanks. It gives the views of the author and does not represent the position of the LSE Media Policy Project blog, nor of the London School of Economics and Political Science.