Evidencing in court that a defamatory statement has caused harm to your reputation can be notoriously difficult. The courts in the UK have therefore traditionally proceeded on the basis that, where a statement is proven to be defamatory, harm is presumed, unless the defendant can prove otherwise. This approach was brought into doubt by the Defamation Act 2013 (the “Act”), which requires that the harm caused by defamation must be “serious” before it is actionable. Does this mean the claimant must now prove that serious harm has been caused in
Category Archives: Defamation
External review of UK’s newspaper and magazine regulator invites submissions
An independent review into the independence and effectiveness of the Independent Press Standards Organisation (IPSO) has been announced. IPSO was established in September 2014, following the Leveson Inquiry into the culture, practices and ethics of the British press. IPSO’s stated objective is to be “an independent regulator of the newspaper and magazine industry” that “exists to promote and uphold the highest standards of journalism in the UK and to support members of the public in seeking redress where they believe that the Editors’ Code of Practice has been breached.” IPSO
Launching: LimeGreen IP News
Hogan Lovells’ Intellectual Property, Media and Technology team is excited to announce the launch of LimeGreen IP News. Complementing our LimeGreen IP know-how site, this new online news platform is designed not only to provide you with detailed discussion on recent case law and decisions but also to provide the latest business critical IP trends and issues from around the globe. To sign up to free alerts from LimeGreen IP News click here to be taken to our subscription page, where you can select to receive all content, or specify your areas of interest (eg patents, trademarks, copyright
UK “Plebgate” Police Scandal Raises Privacy and Human Rights Concerns
The High Court has ruled that the strong public interest in the Court having before it all the relevant evidence outweighs individual rights to confidentiality. The recent ruling comes as part of the so-called “Plebgate” incident involving an altercation between Conservative MP Andrew Mitchell, the Government Chief Whip at the time, and police officers on duty at Downing Street. Police logs initially suggested that Andrew Mitchell had insulted the officers by calling them “plebs”. The minister subsequently apologized for the remark but ultimately resigned from his office one month
USA: Libel by Blog and International Enforcement of Libel Judgments
Recently, there have been several developments in free speech protections in the United States and the United Kingdom. In a case of first impression in the U.S., the Ninth Circuit Court of Appeals extended First Amendment freedom of speech protections from traditional media outlets to individual bloggers. Meanwhile, both the U.S. and the U.K. have adopted more speech protections to prevent plaintiffs seeking out favorable international venues for defamation actions (so-called “Libel Tourists”), with the U.S., through its SPEECH Act, refusing to recognize foreign judgments unless the foreign law provides
UK: Parliamentary Privilege (Defamation) Bill introduced to the Lords – waving goodbye to waiver?
On 9 June 2014 – in an attempt to restore certainty to the ancient doctrine of parliamentary privilege – the Parliamentary Privilege (Defamation) Bill (the “Bill“) was introduced in the House of Lords on behalf of Lord Lester of Herne Hill, QC. By way of background, Article IX of the Bill of Rights 1689 (“Article IX“) established “[t]hat the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.” However, section 13 of the Defamation Act
UK: Defamation (Operators of Websites) Regulations 2013
Website operators seeking to qualify for a defence to possible defamation claims in respect of comments published on their websites contained in the Defamation Act 2013 will have two days (subject to the courts’ discretion) to notify the authors of the comments of the complaint, under the recently published draft Defamation (Operators of Websites) Regulations 2013 (the “Regulations“), currently before parliament. The explanatory guidance published with the Regulations states that they are intended to “be as straightforward as possible for people to use”. However, they are complex, largely bureaucratic and
UK: Judges strike a blow to libel tourism
Two recent decisions – Karpov v Browder and others [2013] EWHC 3071 (QB) and Subotic v Knezevic [2013] EWHC 3011 (QB) – have dealt a blow to so-called ‘libel tourism’, that is, defamation actions in the English courts where there is only the most tenuous of links to the jurisdiction. It is well established that the Court is required to stop as an abuse of process defamation proceedings which serve no legitimate purpose (Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75). Whether the claim in question
Germany: Federal Court allows publication of photos of Princess Caroline’s daughter
How much protection against the media is an eleven-year-old child of a celebrity entitled to while participating in a sports competition? The German Federal Court of Justice (Bundesgerichtshof) answered this question recently (case reference VI ZR 125/12 of 28 May 2013): At the age of eleven, Princess Alexandra, daughter of Princess Caroline of Hanover, had participated in a figure skating competition in Toulon (France). While the competition had attracted only regional attention, “Freizeit Revue”, a German glossy entertainment magazine, published an article on Alexandra being a participant of the competition.
UK: Defamation case provides ‘trial run’ of the future position on trial by jury
A recent defamation decision, Christopher McGrath v Independent Print Limited [2013] EWCH 2202 (QB) provides some insight into the future availability of jury trials once the Defamation Act 2013 removes the presumption in favour of trial by jury in defamation cases. Currently s69(1)b of the Senior Courts Act 1981, states that libel or slander claims “shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with
Germany: Federal Court of Justice took a view on Google’s autocomplete function
In the decision of 14 May 2013 (Docket no. VI ZR 269/12) the Federal Court of Justice (“FCJ”) held that predictions in Google’s autocomplete function could lead to an infringement of personality rights and secondary liability of the search engine operator. FCJ lifted the prior decision of the Appellate Court of Cologne of 10 May 2012 (Docket no. 15 U 199/11) that took a different view and rejected the claims of the plaintiff by denying any personality right impairment a priori. Predictions – Statement of the search engine operator? In
UK: High court rules that Bercow’s Lord McAlpine tweet was libellous
On Friday, 24 May the High Court ruled that Sally Bercow’s tweet “Why is Lord McAlpine trending? *innocent face*” (the “Tweet“) was defamatory. The ruling followed a preliminary hearing on the meaning of the Tweet. The background to the case is that Lord McAlpine pursued a number of Twitter users, including Sally Bercow, who had re-tweeted false accusations linking him to the Saville child-abuse scandal. In a defamation claim, words may have a natural and ordinary meaning or an innuendo meaning. The natural and ordinary meaning does not require the support
Developments in Defamation – Peers Vote in favour of a New Arbitration Service
At the report stage for the new Defamation Bill on the 5 February 2013, the peers of the House of Lords voted in favour of a government-opposed amendment creating a fair, quick and inexpensive arbitration service for defamation and related civil claims to deal with legal disputes involving newspapers. Utilising the “ready-made and carefully considered solution” proposed by Lord Justice Leveson in his report last year, the new clause tabled by Lord Puttnam (and backed by 272 peers) caters for the creation of an arbitration service underpinned by statute and
UK Government confirms that local authorities should not be able to sue for defamation
The UK Government last week confirmed its view that the bar to local authorities suing for defamation remains intact. Since the case of Derbyshire County Council v Times Newspapers and others [1993] 2 W.L.R. 449, it has been well-established that organs of government – both central and local – cannot sue for defamation. In his leading judgment in that case, Lord Keith of Kinkel expressed the view that: It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to
German court denies personality right infringements by autocomplete suggestions
Search engines on the internet and other platforms often use autocomplete functions to facilitate search function for internet users. Steered by software algorithm the autocomplete function allocates popular keywords linked to the search terms when an internet user keys in the search term or phrase he wants to look up. The Appellate Court of Cologne (Germany) ruled that such autocomplete functions do not form willful statements of the search engine operator and dismissed the complaint of a plaintiff who claimed infringement of personality rights caused by insulting keyword suggestions (decision
Spanish court fines Internet forum administrator €6000 for not removing posts
A recent judgment in Spain has condemned both the author of defamatory comments and the administrator of the discussion forum for failing to remove defamatory comments against two government officials. As a result, each faces a fine of €6,000. Published on September 26, 21012, the judgment of June 1st 2012 has been issued by the Provincial High Court of Toledo and confirms a previous a criminal courts’ decision in which the author and the administrator were declared jointly and severally liable for serious defamation. The defamatory comments were directed against a
A case of innuendo?
At a preliminary hearing in the case of Fox v Boulter [2012] EWHC 3183, the High Court considered the difference between a claim for defamation based on the “natural meaning” that words will have to an ordinary and reasonable reader, and a claim based on an “innuendo meaning”, which is only apparent to a reader who has knowledge of certain facts that are not generally known.
Hong Kong – First Court of Appeal Cyber-libel decision
As in many other jurisdictions, the dictum “what is defamatory off-line is defamatory on-line” applies in Hong Kong too. Publication of defamatory material over the Internet has been claimed in a number of cases since the 1990s in Hong Kong but in a recent case the Court of Appeal examined in detail the liability of Internet forum hosts for defamatory material posted on their sites. Hong Kong has had a number of cyber-libel cases such as Asia On-Line Limited and Asia Communications Global Limted and anor v. Chris So filed
Sir Elton John v Times Newspapers Ltd [2012] EWHC 2751
On 21 June 2012, a number of articles (the “Articles”) were published in The Times that were critical of the use of film investment schemes as a means of avoiding tax. The Articles named Patrick McKenna as one of the two main providers of these schemes, and identified his professional association with a number of celebrities. At three places in the Articles (the “References”), Patrick McKenna was referred to as having previously been the accountant of Sir Elton John. In fact, he had never worked for Sir Elton John, and
Privilege and Malice – Qadir v Associated Newspapers Limited
In a preliminary ruling in the on-going libel case of Qadir v Associated Newspapers Limited [2012] EWHC 2606 (QB), the Court has struck out the Mail on Sunday’s defences of privilege on the basis that the articles in question were not a fair and accurate report of legal proceedings. Unusually, the Judge also found that the newspaper had acted maliciously.
Search Engine Operator Liability for Auto-Complete Suggestions
Persistent rumors about the past of Germany’s former first lady, Bettina Wulff, have brought back a yet undecided discussion about search engine operators’ liability for auto-complete suggestions in Germany. The now rebuffed rumors connect Bettina Wulff’s past with allegations such as having worked as an escort girl or as a prostitute. They have been spread out through the Internet by several blogs and articles ever since her husband, the former German president Christian Wulff was nominated for office back in 2010. Resulting from the attraction caused by these rumors, the
Defamation of corporations
Although the Defamation Bill currently going through Parliament does not address the ability of companies to bring defamation proceedings, a report published on 31 August 2012 shows that the question was debated at Committee Stage. At present, it is well-established that the property or business of a corporation: may be injured by defamatory statements whether written or oral. It has a trading character, the defamation of which may ruin it. (South Hetton Coal Company v North Eastern News Association Limited [1894] 1 Q.B. 133) For this reason, it has long
Victory for responsible journalism likely to boost campaign to reform libel laws
In a recent High Court decision, it was held that Nature Publishing Group (“NPG”), publisher of the scientific journal Nature, had not defamed physicist and engineer Mohamed El Naschie, editor of the journal Chaos, Solitons & Fractals, by suggesting that he had abused his position in order to publish an excessive number of his own articles. On 6 July 2012, the High Court finally decided that the article in Nature was substantially true and accordingly that its publisher could rely upon the defence of justification. NPG was also able to