In response, the Inforrm blog has asked:

Does the Act “reverse the chilling effect on freedom of expression of current libel law” or is it damp squib which will make defamation cases more complex?

It’s a big question. It might be more realistic to hope the unwarranted deterrence of legitimate expression is reduced. The answer would need to be informed by a good deal more data than is currently available, to compare defamation related activity pre and post reform. The court records only provide very limited information about the way in which publishing activity is detrimentally affected by defamation costs and procedure.

To understand perceived chilling effects (most invidious when protected expression is deterred for fear of legal sanction and associated costs – see Schauer 1978, PDF) it is necessary to look at claims that are discontinued or settled before a hearing, complaints that are settled before ever reaching court and beyond that threats of legal action that never materialise (see Barendt et al 1997).

Further still, there is the anticipated fear of legal action and costs based on past experience, or the experience of others. Additionally, behavioural change as a result of the new Act and associated procedure might not be immediately obvious (if claims involving causes of action accrued prior to commencement of the Act can still be brought under the old law till late 2014).

It would be beneficial to researchers and policymakers if more anonymised data were made available (by the judiciary/MoJ, media companies and defamation specialist firms) about claims, complaints settled before they reach court, and abandoned threats [more on this here].

It’s encouraging to see the Master of the Rolls emphasise the importance of Alternative Dispute Resolution [PDF]. I’ve heard it suggested that claimants are often far more concerned about an apology and correction than damages (though costs add up fast once litigation is underway); if so, it would make sense to find alternative avenues for resolving disputes more quickly and cheaply.

This would both help protect publishers from illegitimate threats, as well as providing suitable redress for legitimate claimants. Resolving complaints in fair and effective ways through affordable and sensibly designed alternative routes does not necessarily have to prevent access to justice – for both defendants and claimants.

The Guardian is attempting to overturn the Attorney General’s veto of the publication of Prince Charles’ correspondence with seven Government departments. An application for judicial review was heard over two days last week by the Lord Chief Justice, Lord Judge, with Lord Justice Davis and Mr Justice Globe.

Full Law and Media Round Up – 13 May 2013 at Inforrm’s Blog.

Draft Royal Charter, Clauses 22-23, Schedule 3 (my emphasis):

22. The Board should provide an arbitral process for civil legal claims against subscribers which:

a) complies with the Arbitration Act 1996 (“the Act”);
b) provides suitable powers for the arbitrator to ensure the process operates fairly and quickly, and on an inquisitorial basis (so far as possible);
c) contains transparent arrangements for claims to be struck out, for legitimate reasons (including on frivolous or vexatious grounds);
d) directs appropriate pre-publication matters to the courts;
e)    operates under the principle that arbitration should be free for complainants to use;
f) ensures that the parties should each bear their own costs, subject to a successful complainant’s costs being recoverable (having regard to section 601 of the Act and any applicable caps on recoverable costs);
and g) overall, is inexpensive for all parties.

23. The membership of a regulatory body should be open to all publishers on fair, reasonable and non-discriminatory terms, including making membership potentially available on different terms for different types of publisher.

Additionally, the Crime and Courts Bill discusses the effect on costs as a result of participation – or non-participation – in an arbitration scheme.

The discussion among small publishers has mainly been around the compulsory membership aspect of the new legislation proposals, and the penalties for not participating.

But there are also important questions around opting-in and joining the regulator, in order to access the free arbitration services: who should be able to and what type of media output would be included? At what stage of a complaint could a publisher join a regulator*?

And if a publisher can’t access these services, what are the other ADR options, and what would incentivise Claimants, as well as Defendants, to participate?

Further reading on ADR and arbitration:

• Index on Censorship / English PEN Alternative Libel Project
• Early Resolution arbitration
• Lawyers for Media Standards: ‘Serious concerns about Royal Charter arbitration scheme’
• Leveson: Inquisitorial Arbitration – Ned Beale and Cara Gillingham
• Carl Gardner: ‘Why press regulation should cover blogs’
• Carl Gardner: ‘Costs protection for regulated publishers in the Crime and Courts Bill: a small analgesic’

*Also see this post on the LSE Media Policy Project blog, where commenter (and mediator) Simon Carne suggested: “there is no reason why it [membership] couldn’t be applied (or, if necessary, extended) to permit some classes of members to join when the need for arbitration arises“.

JUSTICE, a law reform and human rights charitable organisation, will be exploring  developments in libel, privacy and freedom of expression online at an evening training course later this month.  Speakers include: Rosemary Jay, Senior Attorney, Hunton & Williams; Ashley Hurst, Partner, Olswang LLP; Keith Mathieson, Partner, Reynolds Porter Chamberlain; Catrin Evans, One Brick Court;  Hugh Tomlinson QC, Matrix: Emma Jelley, Google.

Life and Law Online: Defamation, freedom of expression and the web

• Tuesday 20 November 2012, 5 – 8pm
• Hunton & Williams, 30 St Mary Axe, London EC3A 8EP
• CPD accredited (2½ hours). Standard fee £50 (£45 to JUSTICE members)
• Booking at this link [Booking form PDF]

More information:

The explosion of social media is a boon to free expression and the exchange of ideas. Bloggers and tweeters challenge traditional media outlets. And most businesses use social networks as part of an online presence. The transformative power of accessible commentary and immediate communications was underlined by last year’s Arab Spring and August riots.

How has the law responded to this paradigm shift? The internet is not a lawless space – the rules that govern our conduct offline also stretch into cyberspace. But, the particular application of the general law to online behaviour raises new challenges. In a number of key areas, the law is evolving and new proposals have been made to govern and regulate our lives online.

Practitioners must know existing law and be mindful of new developments if they are to meet the needs of clients whose on- and offline lives are becoming increasingly interdependent.

Fast-changing case-law on online defamation has, in part, prompted the government’s Defamation Bill. The bill proposes new responsibilities for third party publishers – including web services and internet service providers. The proposals aim to strike a balance between the right to free expression and the right to individual privacy and reputation. They are not without controversy.

Full details at this link…

The lack of data is detrimental to informed research and debate. While it is a useful document, the Government’s Impact Assessment on the Defamation Bill had to estimate the numbers of libel trials in 2010 and was unable to state a ‘true number’ because there is no central collation of these basic statistics by HMCTS or the Ministry of Justice.

This article attempts to set out what we do know about defamation cases in England and Wales from various sources, but also identify the gaping holes in the public information available. 

According to annual Ministry of Justice statistics, defamation claims make up around 3% of all claims issued in the Queen’s Bench.

But as is well-documented by legal scholars and media practitioners, libel’s reach is far wider than the cases that make it to court: there are unofficial warnings, letters before action, and of course the anticipated threat of a claim, even if it does not materialise (see, for example, Barendt et al 1997).

Additionally, of the claims that make it to court, only a fraction have a reported outcome. For example, the MoJ reported 165 claims during the calendar year 2011, but Inforrm was only able to manually track 28 cases that reached summary judgment or full trial in the same time period (because of the length of libel proceedings, these are likely to be different cases from the new claims, ie. hearings of claims from one or more years previously. This figure also includes listed defamation appeals that concluded the case).

In other cases, the client either withdraws the claim or the parties settle. This may, or may not, be reported in the press.

Below is a summary of the various public sources of information about defamation claims and cases, with comments about their limitations for legal researchers and commentators.

Sweet and Maxwell reports – annually

Each year the legal publisher Sweet and Maxwell releases statistics on the numbers of cases in court – not claims issued – for the year ending 31 May – and gives some additional detail about the type of claimants and defendants.

Posts on the Inforrm blog have criticised the opacity of the data and the reasons attributed for the changes. For example, the latest release opened ‘Phone hacking scandal leads to lower media appetite for libel risk’ prompting various media reports that attributed a post-Leveson effect.  However, a piece on Inforrm countered: “this means that activity in the courts in the period covered by the figures is likely to reflect the position well before the Leveson Inquiry was established in July 2011”.  Additionally the post questioned the categorisation of the data, suggesting that Lawtel, one of the sources of the report, labels a wide range of cases against the media as defamation, “even where that is not the cause of action relied on”.

In this regard, it would be useful if more details about the data and its provenance were supplied: the case names, for example. This would help readers/researchers analyse factors affecting litigation, and any significant changes, for themselves. Of course, as a private company, Sweet and Maxwell is under no public service obligation to provide these reports, so it would be even better if the courts provided this information at source.

The Sweet and Maxwell data is significant because it has influenced public debate. For example, on 12 June and 12 September 2012 David Morris MP argued in the House of Commons that “‘libel tourism’ has been a burden on our civil legal system”, citing the textbook Media and Entertainment Law (Smartt 2011):

 “In September 2010 the Daily Telegraph reported that libel challenges by actors and celebrities in the London courts had trebled over the past year”

This appears to come from this Telegraph report, headlined ‘Libel challenges by actors and sport stars treble in year’, which was based on “figures from the legal information provider Sweet & Maxwell”.

At this stage, I am making no comment about the statement, or the level and type of ‘libel tourism’ in the courts, but use this example to show how more data at source would allow us to check public statements such as these, which may have a bearing on future policy and statute.  Researchers would then be able to make more informed analyses of the features of libel law, such as the number of corporations making claims, or the nature of claims involving claimants and defendants based outside England and Wales.

Ministry of Justice – annually

As noted above, the Ministry of Justice issues annual statistics about civil proceedings. However, it only records the outcome of cases in the Queen’s Bench overall (number of Summary Judgments, Judgment by Default, Trials, Interlocutory Applications for Master) (Excel doc, 2011). Presumably, these outcomes do not necessarily relate to the number of new claims issued for the reason noted above – they could include hearings of claims from one or more years previously. The only firm facts about defamation cases are the total number of claims issued in each claim value bracket (£15,000-£50,000 or over £50,000 or Unspecified). For a table showing the data for 1990-2011 see this post.

Master of the Rolls – 2009

In 2009, the then Master of the Rolls, Sir Anthony Clarke, gave evidence to the Culture, Media and Sport select committee for its second report into press standards, privacy and libel (see below).  The committee asked for information “viz., statistical information regarding the number of defamation cases being heard before the courts, the percentage of time they take up and their cost to the tax payer”.

However, in his written submission, the Master of the Rolls stated “… I should point out that it is not possible for the judiciary to provide the statistical information requested. Such details, if they are kept at all, will be kept by Her Majesty’s Court Service (HMCS)*. Enquiry might therefore be better directed to HMCS or the Ministry of Justice” (Ev 200).

In written supplementary evidence to the committee, he provided a table showing Defamation, Privacy and Malicious Falsehood Trials heard in the Queen’s Bench Division since January 2008 (to April 2009, ev 223), which included 10 libel trials and 1 libel re-trial.

CMS Committee – 2010

The Culture, Media and Sport Select Committee observed the lack of data in its report, published in February 2010. In regards to “libel tourism”, it said: “During the course of our inquiry we asked for information on the number of cases challenged on the grounds of jurisdiction and the success rate of such challenges. We have been provided with no such information and it was not clear who would be responsible for collecting it” (par. 207). As a result, it recommended:

“27. ….  the Ministry of Justice and the Courts Service should as a priority agree a basis for the collection of statistics relating to jurisdictional matters, including claims admitted and denied, successful and unsuccessful appeals made to High Court judges and cases handled by an individual judge. We further recommend that such information be collated for the period since the House of Lords judgment in the Berezovsky case in May 2000 and is published to inform debate and policy options in this area of growing concern (Paragraph 208)” (p. 135) [My emphasis]

Jackson Report – 2009/10

Some general data about defamation costs was included in Appendix 17 of the Jackson Preliminary Report [PDF], which has been used to inform subsequent reports and debate.

It sets out the anonymised details of 154 libel and privacy claims resolved in 2008 involving nine national newspaper groups, broadcasters and news agencies as well as local newspaper publishers, as compiled by the Media Lawyers Association.  This included 137 claims for libel, 15 claims for breach of privacy and two combined claims for both libel and breach of privacy. Details include the Result, Defendants’ costs; Sums paid to Claimant; and whether a Conditional Fee Agreement was used. The Final Report analyses this data in Chapter 2, section 7 (p.23), and summarises the data in tables in Appendix 1 (p. 515).

But as Jackson LJ told the CMS Committee in May 2009, when asked about the number of CFA cases that had been won by claimants, there was a limit to the evidence he was able to collect:

“It appears, from the evidence which I have received, that claimants are successful in a very high percentage of defamation cases. The evidence which has been supplied to me does not enable me to give you a precise percentage; it is something I would have been delighted to receive, but none of the parties on either side of this particular divide has furnished me with evidence which enables me to confirm or contradict the 98%**. I would be surprised if it is that high, but it is certainly a high percentage” (Ev 213).

Asked about data from previous years, he said:

“I am afraid I do not have data from previous years. Obviously, it would be helpful if I did have. This [preliminary] report has been prepared in the space of four months and defamation litigation is actually a very small part of the total subject and there are a huge number of appendices dealing with costs in all sorts of areas. I took the view that the contemporaneous evidence is the most helpful, and my appendices give a snapshot of costs being incurred at about the present time” (Ev 216).

Jackson also stated in his Final Report:

“In recent years there has been an increasing tendency towards trial by judge alone in defamation cases. In 2008 at the Royal Courts of Justice in London there were four jury libel trials and four libel trials by judge alone. At the time of writing [1st December 2009] in 2009 there have so far been four jury trials and nine trials by judge alone” (p. 328).

Libel Working Group

The Libel Working Group’s report [PDF], published in 2010, includes an Annex compiled by the Ministry of Justice summarising 219 unspecified defamation cases issued in the High Court in 2009. Of those, 34 were identified as having a “foreign connection” (Annex B p. 45).  Note that this figure differs from the number of claims issued in 2009, which was 298 (see above) and that there are a number of cautions about the data given in point 6. Annex C gives a list of “libel tourism” cases raised by members of the Working Group (p. 52), with a footnoted disclaimer that “We recognise that ‘libel tourism’ is a controversial concept“.

It also cites Sir Rupert Jackson’s report: “fewer libel cases are now being heard with a jury rather than by a judge alone (he indicates that in 2008 there were 4 of each at the Royal Courts of Justice, and that up to November 2009 there had been 4 jury trials and 9 by judge alone)” (p.85).

Defamation Bill Impact Assessment – 2012

In a document published in April 2012, the Ministry of Justice attempted to monetize, where possible, and assess the societal and wider economic cost and benefit of the proposed defamation reforms. While its Impact Assessment document is useful in the absence of much other collated data, its researchers lacked firm evidence, which is acknowledged throughout the document [PDF].

2.2   “The majority of the impacts on different parties identified in this Impact Assessment cannot be sensibly monetised, in part due to a lack of robust baseline data. We also do not have the necessary data and evidence to make quantitative predictions of how relevant variables would change compared to the baseline in future (p. 24)”.

This is partly because it could not acquire the information from the parties involved in defamation cases, but it was also not able to acquire the necessary courts data. For example, its figures about defamation litigation rely on the Ministry of Justice’s annual statistics, which as outlined above, only contain very basic facts about defamation, the number of claims issued, categorised in three value brackets.

Some of the limitations are laid out on page 27 of the IA:

“There is no official collection of figures relating to the number of defamation cases that reach full trial or on the number of pre-trial hearings in defamation cases

…

“Data are not collated centrally on the outcomes of defamation claims issued in court

…

“We have no reliable data on the number or outcome of cases that do not reach court, including damages and costs paid.

…

“[W]e have also not been able to obtain information on the amount spent by media organisations and others on legal advice to help them make decisions about whether to publish, challenge or defend a challenge.”

In order to estimate the outcomes of defamation cases in 2010, the IA appears to have calculated 3.25 % of the outcomes of total cases in the Queen’s Bench, to arrive at the figures shown below. But these are not the actual outcomes; note the all important disclaimer, “if similar to all claims”.  It does say, however, that the evidence collected from its analysis of a sample of 145 case files “would seem to support these assumptions, particularly on the number of trials concluded” (p.32).

The table below shows the outcome of these sample cases:

Again, there is a disclaimer: “As not all case files are completed consistently, these data should be treated as approximate only.”

It gives details of 331 defamation cases identified as having been issued at the RCJ over the period 01/10/09 – 07/11/11 (not including any cases issued at District Registries).   Table 4, below, shows some breakdown of detail about defendants and claimants (p. 33).

Its data on costs is based on the Jackson PR Appendix 17, as described above (Table 5, p.34).

It states:

“[2.230] Statistics are not collected on the number of trials or jury trials in defamation cases specifically… As discussed under Option 0, if we assume that defamation cases follow a similar profile to all claims issued in the Queen’s Bench Division of the High Court at the Royal Courts of Justice (Table 2), we would expect fewer than 10 defamation trials a year in total. This is supported by our analysis of a sample of case files from cases issued in 2009 and 2010. These data should be treated as approximate only. However, of 145 cases, 5 had proceeded to full trial, and one more was listed for trial. A further 6 were still open. Though the true number may be higher than ten, with only 158 defamation claims issued in total in 2010 it is considered unlikely to be much higher.”

The bold is my emphasis: put another way, the IA had to estimate the number of trials because no central records are kept!

It replicates the information given by Lord Justice Jackson about the number of jury trials (see above) also contained in the report by the Ministry of Justice’s Libel Working Group (see above) and Lord Lester’s evidence to the Joint Committee on the Draft Defamation Bill (see p. 41 PDF):

2.231 It appears there are very few jury trials at all, and no systematic data is collected. However, the Ministry of Justice’s Libel Working Group reported that 8 of the 21 trials between January 2008 and November 2009 were heard by a jury. In evidence to the Joint Committee, Lord Lester noted that there were no jury trials at all in the 18 months to April 2011. (IA, p. 51).

The IA sets out a useful methodology for assessing the impact of defamation, which would be interesting to carry out pre and post-reform. However, in the absence of more data – and I am not sure to what extent the government/Judiciary/HMCTS plans to address this issue – it would be impossible to conduct this exercise.

Criminal libel – 2010-12

Finally, a note about the criminal offence of defamatory libel, which was abolished as part of the Section 73 of the Coroners and Justice 2009, which came into effect from January 2010.

Curiously, a number of ‘libel’ offences were still recorded in Home Office statistics since then: 4 libel offences in 2010/11 [doc] and 1 offence in 2011/12 [doc].

I made inquiries about the circumstances of these reported offences, and was told by a spokesperson from the Home Office:

“Suffolk [Police] have reviewed the four libel offences recorded in 2010/11 and have now ‘reclassified’ these to non-notifiable offences of Malicious Communication.  South Wales have confirmed that they did record an offence in 2011/12 as it still appeared in the Home Office Counting rules but have not indicated whether this was in error.”

Inforrm tables – ongoing

This post has mainly focussed on data about claims and cases, but we also lack evidence about the cost of cases (see, for example, the discussion here).  There are issues around the collection of privacy case data too.

I recently compiled statistics for the legal year 2010/11 and 2011/12 here, for Inforrm. A table of media law cases published by Inforrm can be found here.

I will draw on these tables and posts for a more in-depth article about the difficulties of tracking defamation cases and costs: please contact get in touch if you think there is something I have missed, or have any suggestions about researching the English & Welsh defamation and privacy law landscape.

*Since the time of writing, HMCS became Her Majesty’s Court and Tribunals Service (HMCTS).

**In reference to a figure the committee had previously heard.

This post is part of doctoral research by Judith Townend at the Centre for Law, Justice and Journalism, City University London.

Related links:

• Lucy Series and I wrote a submission to the Cabinet Office’s open data consultation
• The Centre for Law, Justice and Journalism ‘Open Justice in the Digital Era’ project