Government proposals could encourage vexatious libel claims

November 4, 2013

 

–          Survey finds that a quarter of people who said they would not consider taking legal action if they were defamed online, said they would ‘have a go’ if the cost barrier was removed

–          Leading defamation lawyer: “The impact of some these proposed changes could be devastating for small publishers in particular”

Background

The Ministry of Justice is consulting on costs protection in defamation and privacy claims. This would offer one party protection in relation to their liability for the other side’s costs e.g. removing the requirement for the losing party (if they are of modest means) to pay the other side’s costs. The consultation closes on 8 November and in the lead up to this date, specialist media law firm Wiggin, has surveyed the public on their views regarding defamation and the costs involved in bringing a claim.

Key findings:

2,018 GB adults were polled between 18-20 October 2013*

• When asked if they would consider taking legal action if an offensive comment was posted about them online (e.g. on Facebook, Twitter or a newspaper message board), 39% of people said yes.  This is down from 60% the previous year.
• A quarter of those (23%) who said they would not consider taking legal action if an offensive comment was posted about them online, said they would consider it if the cost barrier was removed.
• “If it ain’t broke, don’t fix it”.  When asked about the fairness of the current system, whereby the losing side may have to pay both sides’ costs:
  • 60% said the current system is fair or they are not sure.  Less than half of people (40%) think it is unfair
  • 41% of people didn’t even know that under the current system, if they brought a claim and lost they may have to pay both sides’ costs.

Caroline Kean, Wiggin partner and leading defamation lawyer, comments:

“Our opinion poll indicates that the Government’s proposals could lead to a potential increase in unmeritorious and even vexatious claims being brought. We have found that a significant proportion of people who would not have otherwise brought a claim, would be willing to ‘have a go’ because the risk of having to pay both sides’ costs is removed. The impact of this, on small publishers in particular but also the already over-stretched courts system, could be devastating.

“The consultation states that the principle that ‘the loser pays’ is important because it helps deter unmeritorious claims and we agree with this sentiment. If a party was not otherwise going to take action, we do not believe that the removal of the cost barrier should be their motivation.

“These are similar to the fears expressed by the newspaper industry that a free arbitration service would open the floodgates to vexatious claimants.

“Crucially, what we have also found is that there doesn’t appear to be the appetite on the part of the public to change the current system, less than half of people feel that is it unfair.

“Over the past year we’ve seen a number of high profile defamation cases hit the headlines but the percentage of people who would consider taking legal action if they feel they have been defamed is down significantly. It could be that cases like Sally Bercow’s and Frankie Boyle’s, both of which have ended with settlements being paid to the claimant, have made people more considered about what they post online.”