DEFAMATION GUIDE FOR NGOs Contents 1. PURPOSE OF GUIDE .............................................................................................................. 1 2. INTRODUCTION ..................................................................................................................... 1 3. 2.1 Definition...................................................................................................................... 1 2.2 The threat of defamation to NGOs................................................................................ 1 2.3 Current trends in defamation ........................................................................................ 2 2.4 Amendments ................................................................................................................. 2 OVERVIEW .............................................................................................................................. 2 3.1 3.2 3.3 4. 5. 6. "Defamatory" statements about the claimant................................................................ 2 3.1.1 Who can be held responsible for the publication? ........................................... 3 3.1.2 Who can sue or be sued?.................................................................................. 3 Publication .................................................................................................................... 4 3.2.1 Libel................................................................................................................. 4 3.2.2 Slander ............................................................................................................. 4 Serious harm ................................................................................................................. 5 PROCEDURE............................................................................................................................ 5 4.1 Time limit on bringing a claim ..................................................................................... 5 4.2 Liability for multiple publications ................................................................................ 5 4.3 Place of claim and jurisdiction...................................................................................... 6 4.4 Death of parties............................................................................................................. 6 DEFENCES ............................................................................................................................... 6 5.1 Truth ............................................................................................................................. 6 5.2 Honest opinion.............................................................................................................. 7 5.3 Public interest ............................................................................................................... 7 5.4 Operators of websites.................................................................................................... 7 5.4.1 Identifying the person who posted the statement............................................. 7 5.4.2 Handling a notice of complaint........................................................................ 8 5.4.3 Defeating the defence ...................................................................................... 8 5.4.4 Repeat offending.............................................................................................. 8 5.5 Peer-reviewed statements in scientific or academic journals etc.................................. 8 5.6 Privilege ........................................................................................................................ 8 5.7 Secondary publisher...................................................................................................... 9 REMEDIES ............................................................................................................................... 9 6.1 Damages........................................................................................................................ 9 6.2 Injunction.................................................................................................................... 10 6.3 Removal of statement by third parties ........................................................................ 10 6.4 7. 8. 9. 10. Statements in open court............................................................................................. 10 SETTLING THE CASE WITHOUT GOING TO TRIAL ...................................................... 10 7.1 Apology or reply......................................................................................................... 11 7.2 Offer of amends .......................................................................................................... 11 7.3 Summary disposal....................................................................................................... 11 RELATED ACTIONS ............................................................................................................. 11 8.1 Misuse of private information..................................................................................... 12 8.2 Malicious falsehood.................................................................................................... 12 8.3 Data protection............................................................................................................ 12 8.4 Negligent misstatement............................................................................................... 12 8.5 Harassment.................................................................................................................. 12 SELF-HELP............................................................................................................................. 13 9.1 Be aware of what counts as "published"..................................................................... 13 9.2 Check whether statements can be supported before publishing.................................. 13 9.3 Act quickly on any potential claim for defamation..................................................... 13 9.4 Internet message boards.............................................................................................. 13 9.5 Training and policies .................................................................................................. 14 9.6 Reporting to regulatory bodies.................................................................................... 14 9.7 Notifying people mentioned in public statements in advance .................................... 14 SITUATIONS INVOLVING NGOS....................................................................................... 14 10.1 Campaigning and public statements ........................................................................... 14 10.2 Multi-national and international activities .................................................................. 15 10.3 NGOs as parties to a defamation claim....................................................................... 15 11. GLOSSARY ............................................................................................................................ 15 12. OTHER USEFUL INFORMATION ....................................................................................... 16 1. Purpose of guide The purpose of this guide is to give non-governmental organisations (NGOs) an overview of defamation under the law of England and Wales (referred to as English law) as it stands in January 2014. It is intended to be of use to both lawyers and non-lawyers and has been written accordingly. It does not cover the law of defamation in Scotland or Northern Ireland. Please note that this is a general guide only. Please consult a solicitor for legal advice about individual matters. Please also be aware that with an increasingly connected world and with international organisations, similar situations may arise in other countries which will have different legal systems. 2. Introduction 2.1 Definition Defamation is the name given to the branch of civil law concerned with protecting a person from the effects of publication by a third party of untrue statements which serve to damage that person's reputation. Individuals, companies and partnerships can be both the person making the statement, or the person complaining of the statement. 2.2 The threat of defamation to NGOs NGOs frequently undertake campaigning and lobbying which may involve making statements on the activities and ethics of high-profile companies and politicians, who may be able to raise a defamation claim against NGOs to defend their reputation. The UK defamation regime has been criticised in the past for discouraging the making of such statements. Notably, the United Nations Human Rights Committee in its 2008 report stated that the UK regime "served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work". This perception of the UK's defamation regime as being more favourable to the interests of those who claim they are the victims of defamation, rather than those who publish critical statements on the grounds of public interest, has served to make organisations such as NGOs more cautious in making such statements, for fear of being faced with the threat of a defamation claim, with its attendant costs and damaging publicity. This cautiousness can frustrate these organisations in the pursuit of their objectives. No reported cases were discovered of NGOs being successfully sued for defamation in the UK. One case from France in 2013 in fact resulted in the NGO involved, the Catholic Committee Against Hunger (CCFD), successfully defending a claim for damage to reputation raised by Equatorial Guinea’s President Teodoro Obiang Nguema. Nonetheless, due to several high-profile cases against newspapers, NGOs remain cautious in exposing themselves to the risk of claims of reputational damage. This guide therefore is intended to provide NGOs with an understanding of how to manage this risk of defamation, to enable them to pursue their organisational goals more effectively. The guide highlights the recent changes in the law, which seek to "overhaul the libel laws in England and Wales and bring them into the 21st century, creating a more balanced and fair law" including "protection for those who are publishing material which they reasonably believe is in the public interest". This guide is also intended to inform NGOs how they may seek to defend their own reputation, should it be subject to challenge. 1 2.3 Current trends in defamation With increasing use of social media such as posting on websites, Facebook and Twitter, which make it easier for people to commit defamation due to greater access to methods of publication, concerns about the exposure to defamation actions have increased. The high profile case of the late Lord MacAlpine in 2013 illustrates these concerns. The matter resulted in substantial payments made by the BBC and ITV regarding allegations made on television programmes, a partial amnesty by Lord MacAlpine for Twitter users with small followings who had re-tweeted Sally Bercow's tweet following the programmes, and a court case which found against Ms Bercow for the tweet in October 2013. 2.4 Amendments The law of defamation was substantially amended by the Defamation Act 2013, which fully came into force on 1 January 2014. The aim of the government in reforming this law was to introduce a fairer and more balanced law in this area. In many areas, the Act codified and simplified the previous law. The previous law in these areas will still serve as a guide in interpreting the new law, though the courts will be free to depart from the old law in certain circumstances. Criticism remains regarding the costs that can be incurred in defamation actions. Work to manage the costs of defamation cases is expected to be handled by the Civil Procedure Rules Committee at a future date. The new defamation law will apply to all claims regarding statements made after the Act came into force. Claims regarding statements made before this date will be dealt with under the old defamation laws. However, given the short period of one year in which a defamation claim must be raised, by the end of 2014 the old laws will no longer be applicable to any claims not already issued (see section 4.1). For brevity, claims resulting from statements after 1 January 2014 are referred to as post-2014 claims, and claims resulting from statements before this date are referred to as pre-2014 claims. 3. Overview The basic requirements of a defamation claim are: 1. A defamatory statement made about the claimant; 2. Which is published; and 3. Which caused serious harm. These elements are covered below. Importantly, the claimant does not need to prove that the statement was false to establish a defamation action, although if the defendant can prove that the statement was true, this will defeat the claim. 3.1 "Defamatory" statements about the claimant A defamatory statement can be defined as one which tends to make reasonable people think worse of the claimant. A "statement" is defined very widely as "words, pictures, visual images, gestures or any other method of signifying meaning". Statements are normally given their "natural and ordinary meaning", that is, what a reasonable and ordinary observer would think was meant. Additionally, statements may be given an 2 "innuendo" meaning, where a statement may have a different meaning when special knowledge is taken into account. Thus, a politician may be accused of being unduly influenced by a group of companies by directly stating this, or by implying the influence by stating that they have been seen meeting regularly with a list of people who are prominent figures from those companies. The meaning the person intended to convey in making the statement is irrelevant in establishing whether it is defamatory (apart from where "malice" is relevant - see below). However, the fact that the person did not intend to communicate such a meaning may be relevant towards reducing the sanctions imposed by the court. Actionable defamatory statements should also should be distinguished from "vulgar abuse", said in the heat of the moment and not likely to be taken seriously by those to whom the statement is made. Vulgar abuse is generally considered to apply to oral statements, though can be claimed in relation to publications, such as satirical works. 3.1.1 Who can be held responsible for the publication? Every person who participates in the publication of a statement may be considered responsible for defamation. Thus, for a statement in a newspaper, any or all of the original author, editor, newspaper owner, printer and ultimate seller may be liable. Similarly, on the internet, the author, website host and internet service provider may all be liable. Any settlements by other parties regarding the same publication are taken into account by courts to prevent the claimant recovering more than once for the same harm. 3.1.2 Who can sue or be sued? The claimant must be capable of being identified, either directly or indirectly, as the person to whom the statement applies, but does not need to be specifically named. In addition to individuals, the following categories are considered: Incorporated bodies: An incorporated legal body such as a company, NGO or charity can sue or be sued in its own name. Additionally, individuals in such a body can sue regarding statements made about the body itself where it indirectly applies to such individuals, for example a statement that an organisation is being run for fraudulent purposes may be considered indirectly to defame those who run it, such as directors. Employers: An employer may be held liable for the statements of their employees if made in the execution of their duties. Equally, a company or incorporated body such as an NGO may be held liable for the statements of their representatives (including volunteers and unpaid staff) if made in the execution of their duties. Governmental bodies: Generally, a governmental body cannot sue for defamation on the public policy grounds that the ability to do so would restrict freedom of expression. This restriction also applies to political parties, local authorities and trading corporations operating for governmental bodies. There is however no bar to representatives or officers of such bodies suing for defamation if the criticism can be seen to attach to them as individuals, even if they are not explicitly named. Additionally, there is no bar on Members of Parliament suing for defamation against them personally. 3 Unincorporated groups: Unincorporated associations such as pressure groups or social clubs cannot sue or be sued in their own name, but individuals within that association may sue or be sued if they are sufficiently identified within the group. For example, "all pressure groups are untrustworthy" would be too vague for any one person to be defamed, though a similar allegation against a particular group may allow senior members of that group to sue in their own name. Likewise, senior members may be considered liable for statements released by such a group. 3.2 Publication Publication can be defined for defamation purposes as communication of the defamatory statement to at least one person other than the claimant. This is therefore a very low threshold to meet, though claims where little damage to reputation has been caused because of the limited distribution of the statement may be dismissed by the courts as an abuse of process. The breadth of distribution does however make proof of publication easier to obtain and can have a significant impact on any sanctions which may be ordered. Publication occurs at the location where the statement is seen or heard by the recipient, not where it is made. Thus, for a statement written in England and Wales but published in the USA, the law of England and Wales will not apply. Internet pages are published where they are accessed and read, leading to potential publication in any country where such pages can be accessed. Where a person is unaware of the statement, they generally will not be held liable for publishing it. However, they may be liable if they become aware of the statement and then fail to remove it, for example from a notice board or internet site (see section 5.4). The law of defamation is subdivided according to the mode of publication into libel (permanent) and slander (temporary) which are covered below. 3.2.1 Libel Libel is the publication of defamatory statements in permanent form, such as in the media and on the internet. The following are examples: 1. 2. 3. 4. 5. Radio and television broadcasts; Theatrical performances; Emails, message boards, websites and other material posted on the internet; Photographs; and Books, newspapers and other printed formats. For libel, there is no need for the claimant to prove they have suffered any special damage due to the publication, just that it occurred. 3.2.2 Slander Slander is the publication of defamatory statements in temporary form, generally oral communication. Examples are words spoken at a public event or in a workplace. However, if the statement is broadcast, such as on live television, the publication is treated as libel. For slander, the claimant must prove they have suffered "material loss" (generally financial loss) as a result of the statement. Injury to feelings or psychological and physical illness 4 following the act is not sufficient. However, the claimant does not need to show loss where the statement refers to one of the following: 1. Matters likely to damage the claimant's reputation in relation to his office, professional trade or business; and 2. Guilt of a criminal offence. NOTE: For pre-2014 claims, the following categories also did not require proof of financial loss: 3. That a woman was unchaste; and 4. That the claimant was suffering from certain contagious diseases. 3.3 Serious harm For post-2014 claims, a claimant must establish whether the statement has caused or is likely to cause serious harm to the claimant's reputation. This is defined as meaning "serious financial loss" for businesses (defined as a body that "trades for profit"). For pre-2014 claims, the test is lower, in that the claimant must establish that there is or could be a substantial effect on the attitude of people towards the claimant, which should prevent trivial cases proceeding in the courts. 4. Procedure The following sections cover important procedural elements of raising a defamation claim. 4.1 Time limit on bringing a claim The time limit for a claimant bringing a claim for defamation against a defendant (called the "limitation period") is within one year of the statement being published (see section 3.2), regardless of when the claimant was first made aware of the publication. The courts do have discretion to extend this period if necessary, but seldom grant such an extension. Action should be taken as soon as possible after the alleged defamatory statement, as the defendant may ask for an explanation for any delay. The court may then draw adverse inferences which may weaken the claimant's case, for example that the claimant's reputation could not have been as damaged as they claim, otherwise they would have responded more quickly once the statement had been made. NOTE: the time limit for bringing claims for Scotland is within three years of the communication coming to the aggrieved party's attention. See section 4.3 for more details on foreign claims. 4.2 Liability for multiple publications A claim can be raised for each publication of a statement, each subject to its own limitation period. One statement can therefore lead to many claims, particularly for social media, as demonstrated in the Lord MacAlpine case, where each person who re-posted the allegation on Twitter was potentially subject to a claim. For post-2014 claims, once a defendant publishes a statement to the public or a section of the public, the one-year limitation period for that statement then applies to all subsequent publications of the same statement by the same publisher. This is to prevent the limitation 5 period being extended, potentially indefinitely, in situations such as people accessing webpages, each access being treated as a "publication" with its own limitation period. However, a separate limitation period may start where the same publisher publishes the statement in a manner that is materially different from the first publication (for example where a publication is initially published on a relatively obscure part of website and is then displayed on the home page). A separate limitation period will apply for publications against a different publisher. 4.3 Place of claim and jurisdiction By its nature, a defamatory statement may be published in more than one country. Each statement may give rise to a separate claim under the appropriate national law. A claimant has the choice to raise an action either where the defendant is "domiciled" (see Glossary, section 11) or where the defamatory statement was published. Thus, where the claimant is domiciled in England, the publication was made in Scotland and the defendant is domiciled in the USA, the claimant would not be free under English law to raise an action in England and Wales. A single claim for publication in countries in addition to England and Wales may be made, provided that the claimant can also establish that a potential claim exists in those other countries. The defamation laws in Scotland and Northern Ireland are similar to those of England and Wales, but are treated as foreign jurisdictions for defamation purposes. For post-2014 claims, where the defendant is not domiciled in the UK or a state within the European Union or European Free Trade Association, the claimant must satisfy the court that of all the places the statement complained of has been published, England and Wales is the most appropriate place to do so. This is to prevent so-called "libel tourism" whereby claimants may choose to raise their claims for defamation in England and Wales because of the perception that its laws on defamation are comparatively more favourable to claimants. For example, for a statement in a newspaper which sold a million copies in the USA but a thousand in the UK, it may be more appropriate to raise the action in the USA and so the UK courts may not agree to hear the case. For pre-2014 claims regarding such defendants, the claimant may be required to show that England and Wales is the most appropriate jurisdiction, but the courts have been lenient in permitting such action. 4.4 Death of parties A defamation claim cannot be raised following the death or dissolution of the claimant or defendant. Any proceedings currently underway are terminated, with each side paying their own legal costs incurred regardless of the merits of the claim. 5. Defences There are a number of defences available to a defendant in a defamation case, which are detailed below. 5.1 Truth It is a complete defence if the defendant can establish that the publication was of facts that can be demonstrated to be substantially true. However, this requires evidence, which may be difficult to obtain. 6 NOTE: The defence of Truth replaced that of "Justification", which still applies to pre-2014 claims and is substantially the same. 5.2 Honest opinion A defendant must establish that the publication complained of was an expression of opinion, not fact. Secondly, a defendant must detail the basis of this opinion. Finally, the defendant must show that the opinion was one which an honest person could have held, based either on facts which existed at the publication, or asserted facts in privileged statements published before the publication (see section 5.6). NOTE: The defence of Honest Opinion replaced that of "Fair Comment", which still applies to pre-2014 claims. The main difference is that the old defence also required the opinion to be on a matter of public interest. 5.3 Public interest The defendant must establish that the publication complained of was on a matter of public interest, and that the defendant reasonably believed that the publication was in the public interest. Allowance may be given for editorial judgment and for failure of the defendant to verify the facts where the statement forms part of a neutral report of a dispute involving the claimant. NOTE: The defence of Public Interest replaced the Reynold's defence, which still applies to pre-2014 claims and is substantially the same. 5.4 Operators of websites For post-2014 claims, an operator of a website can defend itself against a defamation claim if it can establish that it was a third party, not the operator, who posted the defamatory statement on its website. This procedure was brought in to remove the pressure on website operators to automatically remove material on receipt of a complaint to prevent it being sued. Website operators should therefore be able to leave such statements on display while it follows the process below without fear of being sued. The process is not mandatory: the operator can choose to follow it or to rely on other defences. The process is outlined below, though guidance from the Ministry of Justice is expected to be published. For pre-2014 claims, the defence of Secondary Publisher may be applicable (see section 5.7). 5.4.1 Identifying the person who posted the statement A person is considered sufficiently identified if the claimant has sufficient information to bring a claim against that person. This generally means the claimant would need the person's name and an address on which court documents could be served. Where the person is identified, the website operator does not need to follow the procedure to be able to use the defence, as it will be open to the claimant to take direct action against the poster. However, operators may be ordered by the court to remove statements found to be defamatory (see section 6.3). 7 5.4.2 Handling a notice of complaint If a claimant cannot identify the poster, the claimant must send a notice of complaint to the operator. Within 48 hours of receiving the notice of complaint, the operator must notify the poster of the complaint and request a response within 5 days. If the operator cannot contact the poster, or if no response is received, the operator must remove the post. The poster may either consent or object to the removal, but can only object if they also provide the operator with contact details. If the poster provides contact details to the operator which are obviously false, the operator should remove the statement. Details of the claimant and poster must be withheld from the other unless they consent to the release of their information. The operator can however be compelled by court order to release the details of either party to the other at a later date. 5.4.3 Defeating the defence The claimant can defeat this defence if they can show that: 1. It was not possible for the claimant to identify the person who posted the statement (the "poster"); 2. they gave the operator a notice of complaint; and 3. the operator failed to respond appropriately. This defence can also be defeated if the claimant can show that the operator acted with malice (such as encouraging such defamatory postings). This defence cannot however be defeated simply because the operator moderates the statements posted on the website (as the majority of operators do). 5.4.4 Repeat offending This applies if an operator has received two or more notices of complaint from the complainant regarding statements with the same or substantially the same content on the same site, all of which resulted in the statement being removed. On receipt of a further notice, the operator must not notify the poster but must remove that statement within 48 hours. 5.5 Peer-reviewed statements in scientific or academic journals etc. This defence protects statements by scientists and academics published in peer-reviewed journals, provided the statement relates to a scientific or academic matter, was independently reviewed and was not motivated by malice. NOTE: this defence only applies to post-2014 claims. For pre-2014 claims, the Reynold's defence may be applicable (see section 5.3). 5.6 Privilege This category of defences is based on the public policy ground that it is for the public good to allow certain freedoms of speech even if they damage a person's reputation with a false allegation. 8 Traditionally, there are two types of privilege which can apply: Absolute: There are certain circumstances where a person is completely protected from allegations of defamation. These include statements made in the course of parliamentary or judicial proceedings, or contemporaneous reports of the same. Qualified: This privilege arises in several circumstances, such as where the person who makes a fair and accurate statement has a legal, social or moral interest or duty to make it, and the person receiving the statement has a corresponding duty or interest to receive it. Examples are reporting incidents to the police, social services or media, writing references, and statements made at public meetings or press conferences. This form of privilege may be defeated if the claimant establishes the defendant was more motivated by the harm it would cause the victim (referred to as malice), such as making a statement to the media rather than to the appropriate authority. Additionally, there may be circumstances where the defendant is required to publish a reasonable statement from the claimant before being able to rely on qualified privilege. NOTE: the categories of protection for both absolute and qualified privilege were extended for post-2014 claims such as the courts, public meetings and press conferences anywhere in the world. For pre-2014 claims, protection generally only covers courts in the UK and the European Court of Justice, and public meetings and press conferences in the European Union. Additionally, the following post-2014 defences are also considered part of privilege: 4. 5. 5.7 Publication on a matter of public interest (see section 5.3); and Peer-reviewed statements in scientific or academic journals (see section 5.4). Secondary publisher For post-2014 claims, once the defendant has established that they are not the primary publisher of the statement in question, the court can no longer deal with the claim unless the claimant can establish that it is not reasonably practicable to bring an action against the primary publisher (for example, if it is not possible to trace or identify them). However, the court may order the removal of such a statement (see section 6.3). If the claimant can establish that it is not reasonably practicable to bring an action against the primary publisher, or for pre-2014 claims, the defendant has a defence by showing that, in addition to not being the primary publisher, they took reasonable care regarding its publication and did not know or have reason to believe that they had caused or contributed to the publication of a defamatory statement. 6. Remedies There are a number of remedies that a court can provide if a person has been found to have published a defamatory statement. 6.1 Damages There are several types of damages which are available, any or all of which may be awarded: General: This is the basic type of damages in defamation claims, and compensates the claimant for injury to reputation and feelings, as well as vindicating the 9 claimant's good name. Damages for this type under the traditional jury trial were very high, however with trials now being conducted by judges by default for post-2014 claims, this measure of damages is expected to become lower than those previously awarded by juries, with a perceived maximum of £200,000. 6.2 Special: This type compensates the claimant for specific loss that the claimant has suffered as a consequence of the defamation and is normally financial. The claimant must make clear the basis on which special damage has been calculated. Exemplary: This type is awarded to punish the defendant for particularly bad conduct, where the defendant has deliberately or recklessly defamed the claimant with a view to profit, or where the defendant is a government servant and has acted oppressively, arbitrarily or unconstitutionally. These must be specifically claimed by the claimant. Injunction The court can order the defendant to do or refrain from doing something. Typically, this is not to publish further the same or similar statements about the claimant. It may be appropriate to apply for an injunction preventing further publication of potentially defamatory statements while the case is being decided. However, if the defendant intends to use the defence of Truth, such an injunction cannot be granted unless the claimant shows the defendant is acting in bad faith or that the defence will ultimately fail. The court may unusually order a party to issue an apology (as ordered against Sally Bercow to Lord MacAlpine should she ever re-activate her Twitter account). 6.3 Removal of statement by third parties For post-2014 claims, a court can order the removal of a defamatory statement from a website or prevent a person who is not the primary publisher of the statement from selling, exhibiting or distributing material containing the statement. These powers are in addition to the court's power to grant injunctions against the primary publisher of the original statement (see section 6.2). 6.4 Statements in open court A court may give permission for a statement to be made by the claimant, defendant or jointly, to be read in court with the aim of vindicating the claimant's reputation. Such statements are absolutely privileged and cannot therefore be the subject of any further defamation actions (see section 5.6). These can be of great value to claimants in restoring their reputation. For post-2014 claims, a court may order the defendant to publish a summary of the judgment in all defamation proceedings. For pre-2014 claims, a court may only order the defendant to publish such a summary after deciding a summary disposal of the case (see section 7.3). 7. Settling the case without going to trial In addition to the normal methods of settling a dispute without a trial (such as negotiating an agreement or mediation), the following additional options are available for defamation claims: 10 7.1 Apology or reply In many situations of defamation, a quickly delivered retraction and apology is what the injured party is looking for, rather than a full court case with all the uncertainties and expense that entails. An additional motivation to accept an apology rather than proceeding to a full claim is that a full claim can result in greater publicity for the statement, as the court documents and proceedings are public and so can cause additional reputational damage to both claimant and defendant. If a claimant accepts a full and unreserved apology from the defendant, they cannot then sue them, unless the claimant has specifically reserved this right. This is separate from the more formalised offer to make amends covered below. Additionally, claimants often look for an apology by way of statement in open court (see section 6.4). Alternatively, a defendant may give the claimant the opportunity to publish a reply to the statement in a suitably prominent location. NOTE: it is typical for claimants to ask for apologies or replies to be given the same prominence as the original statement. This is unlikely to be given for very high profile cases such as front-page stories, the defendants preferring to pay higher damages. This can be the subject of negotiation between the parties. 7.2 Offer of amends This is an offer to pay costs and damages (as assessed by a judge), with an apology. The offer must be in writing, agreed with the claimant and made before service of the defence. If accepted and complied with, the offer ends the claim. If refused, the fact that an offer was made is a defence in the full proceedings and may serve to reduce any eventual damages. However, if the original statement was made maliciously, such an offer does not give the defendant these protections. 7.3 Summary disposal Either party may apply for the court, after service of the particulars of claim, to consider whether there is any prospect of success of a defamation case. The court may decide there is no prospect of success, because there is no defamatory meaning in the statement complained of, and so may strike out the case, or may decide the defendant has no reasonable defence to the claim and award judgment to the claimant. The court may also order a defendant to consider making an offer of amends (see section 7.2) or order the defendant to publish a summary of its judgment (see section 6.4). 8. Related actions There are a number of related actions which may arise regarding publication of information. Unless otherwise stated, the limitation period is six years from when the statement was published. 11 8.1 Misuse of private information This action is often coupled with defamation actions and applies to statements which are true, but which are either obviously private or would give substantial offence to a person of ordinary sensibilities in the position of that individual if made public. An individual (and to a lesser extent, a business) has a reasonable expectation of privacy regarding information about them. To be protected, the claimant must establish they have a reasonable expectation of privacy and that their right to privacy outweighs the public interest in that information being published. This law has been used in very high profile cases such as the Max Mosley case regarding his sexual practices with prostitutes, Michael Douglas and Catherine Zeta Jones regarding photographs of their wedding, and Naomi Campbell regarding her attendance at a drug addicts treatment centre. 8.2 Malicious falsehood This action covers statements which are false but not defamatory, were published maliciously and to produce damage, and caused such damage. It is primarily concerned with protecting property rights and is commonly used in trade disputes about statements made about the quality of rival goods. Unlike defamation, a claim may be raised following the death of either party. This claim has a limitation period of one year. 8.3 Data protection The claimant, if they are an individual, may claim that the defendant is in control of personal data about the claimant and is therefore under a duty to comply with data protection laws, most importantly that data must be processed fairly and lawfully. The claimant has a right to request that the Information Commissioner carry out an assessment of whether the defendant has complied with the data protection laws. The Commissioner may serve enforcement notices on the defendant and may impose a fine of up to £500,000. However, they cannot award compensation to the claimant. The claimant may apply to the courts for compensation for breach of data protection, but only for provable loss sustained by the claimant, not the general damages awarded for defamation. 8.4 Negligent misstatement An action for negligence may be available if loss has occurred but a defamation claim cannot be substantiated, for example where an employment reference is negligently prepared but without any evidence of malice (thus otherwise covered under qualified privilege, see section 5.6). 8.5 Harassment The Protection from Harassment Act 1997 defines harassment as where a person's behaviour is such that a reasonable person in the possession of the information of the person would think the conduct amounted to harassment. It provides for both a criminal offence punishable by up to six months' imprisonment and/or a fine, and allows for civil remedies such as compensation or injunctions. There is no requirement that any allegations are false. This could potentially apply where a person effects a sustained campaign of vulgar abuse, for example on an internet message board. 12 The criminal remedy has a limitation period of six months from the last act complained of. 9. Self-help The following pointers are designed to improve your organisation's handling of defamation claims. 9.1 Be aware of what counts as "published" Be aware that an increasingly wide variety of formats count as being "published" in permanent form. Be particularly wary of electronic formats such as emails, message-boards, Facebook pages and Twitter feeds, all of which count as "permanent" and by which statements can be quickly be made. Advise your staff to be cautious in using such social media and in any printed material they produce. 9.2 Check whether statements can be supported before publishing Ensure that you can support any potentially contentious statement with evidence of its truth and/or of underlying duty or interest to publish before publishing it. This exercise also ensures that any statements are suitably drafted and do not go beyond what can reasonably be supported (see in particular the defences of Truth, Honest Opinion and Public Interest in sections 5.1, 5.2 and 5.3 above). 9.3 Act quickly on any potential claim for defamation Act quickly if either you believe you have made a statement which may be treated as defamatory, or if you believe someone has made a defamatory statement about you. Acting quickly enables you to deal with a situation before it escalates into something more serious, will help show the courts that you acted appropriately should the matter end up becoming a full claim, and will prevent any adverse inferences being drawn for delay if you are the claimant (see Time limit on bringing a claim, section 4.1 above and Settling the case without going to trial, section 7 above). It is advisable to consult a legal representative as soon as possible, to ensure that you are correctly advised of your legal position. If you believe you have made a statement which may be treated as defamatory, decide how you want to deal with the situation: do you want to retract the statement and issue an apology or do you believe you have the evidence to support the statement? (see section 9.2) If you believe a statement has been made about you which you regard as defamatory, again decide how you wish to proceed: would a simple retraction and public apology be all that is required to remedy the situation, or do you have grounds for claiming compensation and legal costs from the maker of the statement (for example your business interests have been affected)? (see Apology or reply, section 7.1 and Damages, section 6.1) 9.4 Internet message boards If someone has posted a statement which may be treated as defamatory on an internet message board controlled by you, you should be protected from defamation claims provided you follow the correct procedure if someone issues a notice of complaint. To reduce the chances of such statements being made in the first place, you should prominently place warnings about appropriate content. Additionally, to avoid the inconvenience and possible 13 adverse publicity of having to deal with such notices, to the extent it is practical, consider moderating message boards for potentially defamatory content. If you have been the subject of defamatory statements on such a message board, you should file a notice of complaint in the correct format with the website operator as soon as you become aware of them. For further details on the law regarding operators of websites, see section 5.4 above. 9.5 Training and policies Provide the appropriate training on defamation for those who are public-facing, such as those who issue public statements and documentation or who give interviews. Coordinate policies on how to reduce the risk of being exposed to the threat of defamation claims and how to respond to both threats of action and of potential defamation against you, including clear chains of communication to management. 9.6 Reporting to regulatory bodies It is advisable to report allegedly defamatory statements to the Press Complaints Commission (PCC) for print or online journalism or to the Office of Communications (Ofcom) for radio and TV coverage. Ofcom has the power to fine and revoke licences for breaches of the Broadcasting Code. The PCC has no legal power to order compensation or other remedies, though the media generally seek to comply with its rulings. Press regulation is due to be augmented by the Recognition Panel, established by Royal Charter, though not until 2015 at the earliest. Additionally, report misuse of personal data to the Information Commissioner's Office. 9.7 Notifying people mentioned in public statements in advance Consider notifying people who are mentioned in public statements of the content of the statements in advance, as much as is possible, to give them the opportunity to correct any inaccuracies and voice any concerns before publication (provided only the other party is notified and no third party, no publication will have been deemed to take place). Caution should be adopted when doing so, to ensure that any parts of a statement which you wish to keep secret are suitably redacted. 10. Situations involving NGOs The following situations regarding NGOs are of particular relevance regarding defamation: 10.1 Campaigning and public statements An NGO may be involved in campaigning activities and in the making of public statements, for example, highlighting deficiencies in current practice or policy by governments, ministers, companies, political parties or other organisations. Caution should always be advised when making any public statements, particularly by considering (in advance if possible): 1. What medium will be used to communicate such statements (see section 3.2) 14 2. That any statements are supported by a relevant defence such as Truth or Public Interest (see sections 5.1, 5.2 and 5.3) 3. Who may be directly or indirectly implicated within the statement, and whether these bodies are able to sue for defamation (see section 3.1.1) Where a statement has been made that may be taken to be defamatory, consider at the earliest opportunity what your response will be (see sections 4.4 and section 7). 10.2 Multi-national and international activities NGOs may be involved in activities in more than one country. By its nature, a defamatory statement may be published in more than one country which may give rise to a claim under each country's law (see section 4.3). NGOs should therefore understand the applicable law on defamation within each of the countries in which they operate. 10.3 NGOs as parties to a defamation claim NGOs as incorporated bodies may be sued for defamation according to the principles of vicarious liability (see section 3.1.1). However, they may not be able to raise an action for defamation if their connection to government is sufficient to bring it within the public policy that governmentally connected bodies should be open to uninhibited public criticism and therefore not able to pursue a defamation claim. This will depend on the degree of control exercised over it by government, and what government functions the NGO performs. 11. Glossary Term Definition Defamation The branch of law concerned with protecting a person's reputation from the effects of publication by a third party of untrue statements which serve to damage that person's reputation. Domicile Where a person is resident and has a substantial connection. An incorporated body's domicile is determined by where it is incorporated, managed and controlled from. Libel The publication of defamatory statements in permanent form. Includes publication on the internet and media broadcasts. See section 3.2.1 for more details. Limitation period The length of time the claimant has to register a claim with the courts. In the defamation context, this is the time from the publication of the statement. See section 4.1 for more details. Malice The defendant was driven by an improper dominant motive, basically any motive other than discharging a legal, moral or social interest or duty. This is generally established by showing that the defendant knew or was reckless to the fact that the statement complained of was false at the time of making the statement. Malice is difficult to prove in court. 15 Term Definition Person Includes individuals, companies and any body with legal personality. Non-governmental organisations may have legal personality. Partnerships can sue or be sued in their own name despite not having legal personality. Generally, unincorporated groups cannot sue or be sued for defamation. See section 3.1.2 for more details. Privilege A group of defences protecting the maker of a statement from a defamation action regardless of the truth of the statement, on public policy grounds. See section 5.6 for more details. Publication Communication of the defamatory statement to at least one person other than the claimant. See section 3.2 for more details. Slander The publication of defamatory statements in temporary form. Generally oral statements. See section 3.2.2 for more details. Statement Defined as "words, pictures, visual images, gestures or any other method of signifying meaning". See section 3.1 for more details. 12. Other useful information The following legislation forms the main statutory basis of the law regarding defamation: Defamation Act 1952 Defamation Act 1996 Defamation Act 2013 The Defamation (Operators of Websites) Regulations 2013 These are available at www.legislation.gov.uk, along with the Explanatory Notes which explain how the legislation is designed to operate. The following elements of the Civil Procedure Rules are particularly relevant to defamation claims: PART 53 and Practice Direction 53 of the Civil Procedure Rules, both titled "Defamation Claims" Pre-action Protocol for Defamation These are available at www.justice.gov.uk/courts/procedure-rules/civil The following links are provided to relevant regulatory bodies: Press Complaints Commission: www.pcc.org.uk Office of Communications (Ofcom): www.ofcom.org.uk Information Commissioner's Office: ico.org.uk For further information www.dlapiperprobono.com on DLA Piper's Pro Bono programme please visit 16 This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. DLA Piper UK LLP and DLA Piper SCOTLAND LLP will accept no responsibility for any actions taken or not taken on the basis of this publication. If you would like further advice, please speak to your DLA Piper contact on 08700 111 111. www.dlapiper.com DLA Piper UK LLP is authorised and regulated by the Solicitors Regulation Authority. DLA Piper SCOTLAND LLP is regulated by the Law Society of Scotland. Both are part of DLA Piper, a global law firm operating through various separate and distinct legal entities. For further information please refer to www.dlapiper.com UK switchboard: +44 (0) 8700 111 111 Copyright ©2014 DLA Piper. All rights reserved. | MAR 14 | Ref: LON/CR/17733838 (17763156)