The Libel Reform campaign has condemned the proposal to remove the clause which would require corporations to show financial damage before they can sue for libel. The Media Reform Coalition argues that the clauses are crucial: “Without a requirement to show damage, there is a danger that companies can use libel courts as an arm of their PR operations, simply suppressing what they don’t want in the public sphere”.

Full round up at Inforrm’s Blog…

The full project title is: “The Defamation of Companies: Free Speech, Public Protection and the Economic Consequences of False Statements upon the Value and Reputation of Companies”. Application details available here (deadline: 19 April 2013)

Applications are invited to a three-year PhD Studentship in Portsmouth Business School, starting 1 October 2013.

Defamation compensates injury to reputation through the spreading of false statements. The English common law has recognized that companies have a reputation to protect, and therefore standing to bring defamation claims. A false statement about a company such as claims about the safety of its product, its treatment of workers, or sourcing of goods, can have adverse impacts upon its share price, income and corporate image. Yet theorists have claimed that unlike individuals whose reputation is damaged, and who may seek defamation to protect their honour and dignity, corporate reputation is a property interest linked to such business concepts as ‘goodwill’ and company value.

Calculating such damages is likely to result in more substantial award of damages than that associated with individuals, and this poses a major problem for groups and individuals who wish to hold companies to account for poor ‘corporate practices’ who may be deterred by companies using defamation SLAPP suits to stop criticism. Such suits undermine the freedom of speech of campaigners and has led to the adoption of anti-SLAPP suits in many US states, whilst in Australia the right of corporations to sue has been removed completely.

Concerns over anti-SLAPP suits and the deterrent effect of large damages awards in cases of corporate libel have been raised in regards to the recent debate on defamation reform in England. The current version Defamation Bill addresses this issue only through the new general requirement that requires all defamation claimants to prove the ‘publication has caused or is likely to cause serious harm.’

The aim of this research is to evaluate whether corporations should have the right to sue, and if they are to do so how should damages, or “serious harm”, be calculated, and can this be done in a manner which does not deter civic society organisations and individuals from criticising or monitoring corporate activities.

The research is expected to adopt a number of methodologies to address these questions:

• Examination of case-law and commentary to understand why companies were permitted to sue for defamation in the first place and how this law has developed.
• Examine the underlying theories of defamation/reputation (such as Howarth 2011).
• Use empirical data collection relying upon a series of event studies of alleged libels of companies (such as Vick and Campbell 2001)) to assess the long-term economic and reputational interests upon companies, comparing these with event studies of corporations whose corporate misconduct have been proven.
• Undertake a comparative study with countries which have amended their libel laws to introduce SLAPP suits and prohibit corporations from suing to see if this has any impact upon the reporting of corporate malpractice.
• Review the adequacy of alternative mechanisms of protecting corporate reputation including other legal actions like malicious falsehood and methods employed by reputation management companies.

Full details at this link…

Reblogged from Inforrm's Blog:

The theme of privacy continued to dominate media law discussion last week, as a French court granted an injunction prohibiting further publication of the Duchess of Cambridge photographs in France. Press Gazette reported that the editor of the Irish Daily Star, Michael O'Kane, was suspended following his decision to publish the photographs.

Read more… 1,947 more words

Reblogged from Inforrm's Blog:

This post is an update to Inforrm's previous tally of defamation cases, which tracked Defamation Trials, Summary Determinations and Assessments in 2011; 2010 and 2005-2009. Additionally, the Ministry of Justice's Impact Assessment on the Defamation Bill [PDF] records approximate data for the outcomes of 145 unspecified sample cases 2009-10.

Read more… 292 more words

Reblogged from Inforrm's Blog:

It was the thirteenth week of evidence at the Leveson Inquiry. As Natalie Peck reported for Inforrm here, the Inquiry heard from former Times in-house lawyer, Alastair Brett, crime reporters and senior figures from the Metropolitan Police force, including head of press Dick Fedorcio.

Read more… 2,357 more words

Firstly, the Committee accepts the Draft Bill’s proposal for a Single Publication Rule, which would limit defamation claims to one year following initial digital publication, as long as the contents are substantially the same as the original (the court still has discretion to extend the one-year time-period “whenever it is just to do so”). Additionally, the Committee called for a widening of the clause’s remit, to protect not just the original publisher but anyone who republishes the same material:

The single publication rule should protect anyone who republishes the same material in a similar manner after it has been in the public domain for more than one year. It should be clarified that the simple act of making a paper-based publication available on the internet, or vice versa, does not in itself amount to republishing in a “materially different” manner.

It’s the consultation bit that gets really interesting: the Committee acknowledges “the challenges that any national legislature faces when acting alone in relation to a global issue” but does not regard these as “an excuse for inaction”.

Specifically, it recommends:

• The circumstances of online publication should be taken into account when determining whether material has caused “serious and substantial harm” [with reference to "casual internet publications", which allow rapid retraction or amendment]
• A new notice and take-down procedure for online publication [including the possibility of a "leave-up" order]
• The encouragement of a “cultural shift towards a general recognition that unidentified postings are not to be treated as true, reliable or trustworthy”

In practice, it recommends different treatment for material with “indentifiable” and “unidentified” authorship.

It proposes that for identifed material, the ISP must publish a notice of complaint alongside the material; if it doesn’t, it can only rely on standard defences available to a primary publisher, if sued. The complainant can seek a take-down order from the courts, with opportunity for the ISP and author to make submissions to the judge. For anonymous and unidentified material, the ISP must remove material immediately upon receipt of complaint, unless authorship can be established. Additionally:

“If the internet service provider believes that there are significant reasons of public interest that justify publishing the unidentified material—for example, if a whistle-blower is the source—it should have the right to apply to a judge for an exemption from the take-down procedure and secure a “leave-up” order.”

This proposed procedure is part of the Committee’s attempt to promote “cultural change … that will minimise the damage inflicted by the mischievous and the malicious” and would mean that the host or service provider is not liable for anonymous material – if it complies with the stipulated requirements.

Finally a note on comment moderation and the ‘to interfere, or leave well alone?’ debate. The Committee suggests its “two-stage procedure” should “apply equally to online sites that are moderated and those that are not” [my emphasis].

The Committee’s evidence revealed that “as the law stands, far from encouraging service providers to foster legitimate debate in a responsible manner and removing the most extreme material, it encourages them to ignore any dubious material but then to remove it without question following a complaint”.

The Committee labelled this an “unacceptable state of affairs” and at odds with public interest. Consequently, to “correct the existing disincentive to online hosts to moderate sites” its report recommends that the Government reforms the Defamation Act 1996:

“to the effect that secondary publishers—such as internet hosts or service providers—shall not be treated as becoming liable for allegedly defamatory statements solely by virtue of having moderated the material or the site more generally. Liability should be determined by the way in which the host or service provider responds to a request for a defamation notice or a take-down order.”

Comment: It looks as if the Committee has really tried to get to grips with some of the challenges that digital technology poses for defamation law and procedure. But, as the Committee itself says it is not “advancing an ideal solution, still less an instant one”. There are still uncertainties to be discussed… Have a read, and let me know what you think. We’ll come back to this.

Further reading

• Out-Law.com>> Allegedly defamatory comments from named authors should stay online, say MPs

• The report, below>>

In the meantime, to coincide with the government’s publication of the draft defamation bill, the Centre for Law, Justice and Journalism at City University London has made digital papers available here: http://reframinglibel.com/the-papers/

Or:

• Peter Wilmshurst: Changing the experience of being sued and the impact on science and medical research
• Claire de Than: Time for a bigger time frame?
• Alastair Mullis and Andrew Scott: Reframing libel – Taking (all) rights seriously and where it leads
• Robert Dougans: Reframing Libel: The online perspective
• Andrew Stephenson: Science and libel
• Gavin Sutter: Reforming libel – evolution, not revolution
• Roy Greenslade: What needs to happen from the media’s perspective
• Razi Mireskandari: Reframing the costs of libel
• Magnus Boyd: The proposed restriction on corporate bodies to sue for libel
• Hugh Tomlinson: A practitioner’s perspective

The government’s public consultation on defamation law can be found here: https://survey.euro.confirmit.com/wix1/p624025741.aspx

Defamation

• David Allen Green>> The draft libel reform bill is a good thing
• Inforrm>> “Let the press be free” – Nick Clegg and Defamation Bill nonsense
• Inforrm>> Opinion: “Does anyone gain from the Defamation Bill?” – Dominic Crossley
• Inforrm>> News: Defamation Bill Consultation Launched- few surprises and little radicalism
• Media Guardian>>A minor triumph for libel reform | Siobhain Butterworth
• Index on Censorship>> A “good” bill but government is yet to tackle ISPs and corporations
• Index on Censorship>> At last a blow to oligarchs
• Press Gazette>>Sunday Telegraph sued over extremist claim
• Press Gazette>>Libel reform plan should go further, say campaigners
• Media Guardian>>The libel reforms are a step in the right direction – but do they go far enough? | Joshua Rozenberg
• Media Guardian>> Nick Clegg: We will end the libel farce
• Media Guardian>> Government unveils libel law reforms

Privacy

• Index on Censorship>> The FT on “unfree speech”
• Media Guardian>>When you can’t call Fred Goodwin a banker, whatever next?
• Media Guardian>>Have MPs, and the media, found a way to overcome super-injunctions?
• Index on Censorship>> How the injunction became “super”
• The Independent>> Government refuses to outlaw celebrity gagging orders

Online  / social media

• Press Gazette>> Gillingham FC bid to unmask BBC Online commenters
• Press Gazette>> Court hands down first Twitter libel damages order
• Index on Censorship>> US judge rejects appeal of Twitter users in Wikileaks case
• IPMediaLaw>> Tweet In Haste, Repent At Leisure-First Twitter Libel Damages Award In A UK Court
• Out-Law.com>>EU privacy law will extend to US social networks, vows Commissioner
• Inforrm>> Opinion: “Tweeters Beware” – Sara Mansoori
• Media Beak>> Politician punished for libellous political Tweeting
• OnlineJournalismBlog>> When is an online comment defamatory? By Rob Minto

Phone hacking

• Inforrm>> News: Phone Hacking – the DPP’s letter to the Guardian
• BBC News>> News of the World obtained hacked e-mails
• Jon Slattery>> Panorama to expose the ‘dark arts’ of journalists
• Press Gazette>> New revelations over journalists’ illegal payments
• Press Gazette>> Marunchak speaks out on email-hacking claims
• Press Gazette>> PCC ‘determined to raise standards’ with hacking review

Misc

• Meeja Law>> The story behind ICorrect
• Meeja Law>> ICorrect: a form of alternative dispute resolution?
• Index on Censorship>> Midsomer blunder

Tips & tools

One for your RSS reader: the excellent and relatively new RPC Privacy Blog; also on Twitter here, @RPCPrivacyLaw.

You can find a full stream of aggregated media law news via @medialawUK on Twitter; and Meeja Law tweets go out via @meejalaw. Contact me via @jtownend or jt.townend [at] gmail.com. Relevant journalism and law events here: https://meejalaw.com/events/