The trouble with counting defamation cases

As anyone who has tried will know, it’s very hard to measure different types of civil litigation in England & Wales.

I am primarily interested in defamation and privacy claims; some information can be obtained from the courts when you know what you’re looking for. You can start to build up a patchwork picture through Ministry of Justice releases, law reports, news articles, law firm updates, journal articles, legal conferences, published judgments, blogs and social media. But clear quantitative data at source is tricky to come by and, as I’ve pointed out many times before (eg.), a lot of the information is behind legal paywalls.

For example, in August 2011 the Inforrm blog took a Sweet and Maxwell report to task for its statistics on the number of online defamation cases, arguing “the figures are curious and their precise provenance unclear”. Inforrm suggests some other sources of data: the MoJ’s annual stats on number of defamation claims and a very useful table showing the number of defamation writs since 1990, supplied by RPC’s Jaron Lewis. But further breakdown is difficult to come by.

I am currently gathering supplementary information about defamation and privacy claims through interviews with media lawyers, as part of my doctoral research (please email me if you’re interested in participating: judith.townend.1 [at] city.ac.uk).

I spotted on WhatDoTheyKnow.com that a user (Anna) had asked what might seem a reasonable question through FoI, inquiring about “the numbers of cases of online defamation concerning businesses/corporations” and the names of the businesses involved.

I didn’t hold out much hope for her! First of all, the Government Office for Science Business, Innovation & Skills, where she originally directed her inquiry in February 2012, replied on 6 March 2012 (my emphasis):

The Ministry of Justice (MoJ) holds has some statistics on defamation – specifically the number of claims issued. The latest published stats are for 2010 and are available on their website at the following link: http://www.justice.gov.uk/downloads/publications/statistics-and-data/courts-and-sentencing/high-court-queens-bench.xls. MoJ has no breakdown of the statistics beyond that either in terms of the number of cases that result from defamation online, or the number that involve corporations. 

Then, on 11 April 2012, Anna re-submitted the request to the Ministry of Justice, which replied on 2 May [reply in full here]:

Your request has been handled under the Freedom of Information Act 2000 (FOIA). I can confirm that the Department holds some of the information you have requested. However, I am sorry to inform you that from my preliminary assessment of your request, it is clear that I will not be able to answer your request in full without breaching the section 12 cost limit under the Act.

No surprises there.

It may help if I explain that the Ministry of Justice Court Proceedings Database holds information on defendants proceeded against, found guilty and sentenced for criminal offences in England and Wales. This database holds information on offences provided by the statutes under which proceedings are brought but not all the specific circumstances of each case.

Well, not really: her request concerned civil not criminal data…

Other than where specified in a statute it is not possible to identify from centrally held data, for example, in cases proceeded against for publishing defamatory libel under Common Law, the specific form in which the publication allegedly occurred, i.e. whether the publication was made online, including social networks like Facebook or Twitter. This detailed information may be held by the courts on individual case files which due to their size and complexity are not reported to Justice Statistics Analytical Services…

My emphasis again.

…In this instance to provide you with the information you seek we would be required to contact all the courts in England and Wales and ask them to search individual case files. To confirm whether the Ministry of Justice holds the information you require on the scale that you have requested would therefore exceed the ‘appropriate limit’ set out in section 12(1) of the FOIA.

For Anna’s purposes this could be limited to the High Court.

…. Whilst you could narrow the scope of your request in order to try and bring it within the cost limit, for example by requesting information for a particular magistrates’ court, I would like to take this opportunity to advise you that it is very likely that any information that may be held within scope of your request may be exempt from disclosure under the FOIA under the terms of Section 32 (Court Records). Therefore it is likely that any subsequent narrowed request could be refused under Section 32.

A magistrates’ court wouldn’t be very useful in terms of tracking libel claims. And finally, the issue of Section 32, quoted below (my emphasis):

Section 32 exempts information contained in certain litigation documents and court, tribunal and inquiry records and will apply regardless of the content of the information. There are separate and specific regimes for gaining access to court and tribunal records and section 32 ensures that those regimes are not superseded by the FOI Act.

Key points:

  • Section 32 will apply only if the public authority concerned holds the information solely because it was contained in one of the specified documents.
  • Section 32 applies regardless of the content of the information
  • The application of section 32 is not subject to any public interest balance.

If you’ve got any bright ideas for Anna and other people interested in this area, please do comment below, or drop me an email. I’ll address the issue of counting/tracking privacy claims in due course.

Related links:

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This entry was posted in academic research, blogging, courts, data, defamation, digital open justice, freedom of information, journalism, media law, media law resources and tagged , , , , , . Bookmark the permalink.

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