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Range of factors behind fall in number of defamation cases, says expert

A change in the law that makes it more challenging to prove defamation in England and Wales is just one reason why the number of defamation cases brought in the UK fell last year, according to a media law expert.07 Jun 2017

Imogen Allen-Back of Pinsent Masons, the law firm behind Out-Law.com, said other factors that may explain the fall in cases include the fact that claimants are looking to other heads of claims as alternatives to bringing claims in defamation, such as data protection, as well as the costs involved in bringing media law cases before the courts.

Allen-Back was commenting after legal information service provider Thomson Reuters said that there were 58 defamation cases brought before the UK courts last year, down from 63 the year previously and 86 in 2013/14. According to the figures, 10 of the 58 cases in 2015/16 were brought by businesses, compared to 17 such cases in 2014/15.

It is the lowest number of defamation cases recorded since 2008/9, Thomson Reuters said.

"Although these statistics are interesting, there will always be variation year on year," Allen-Back said. "While the Defamation Act 2013 has certainly raised the threshold for bringing defamation claims, there are likely to be many other contributing factors to any decline in the number of defamation cases being brought."

"For instance, we are seeing an increasing number of claims being brought under the Data Protection Act 1998, either alongside or instead of claims in defamation and privacy. Further, the high cost of litigating media claims versus the relatively low damages awards is likely to discourage a number of claimants," she said.

Under the Defamation Act, defamation claims can only be pursued if a statement caused, or is likely to cause, serious harm to the reputation of the claimant. Since the Act came into force there have been a number of cases where courts have provided guidance on the test that must be met for demonstrating 'serious harm'.

In January, the Court of Appeal in London ruled that people who claim that they have been defamed by publishers are not barred from also claiming in the same legal proceedings that the publisher has breached data protection laws by processing data about them which is inaccurate.

According to the Thomson Reuters figures, 13 defamation cases brought before the UK courts in 2015/16 concerned claims related to comments made on social media, up from 11 such cases in 2014/15 and eight in 2013/14.

Last February, the High Court in Northern Ireland ordered Sinn Féin politician Phil Flanagan to pay Tom Elliott, former leader of the Ulster Unionist Party and former member of the Ulster Defence Regiment (UDR), £48,750 in damages for posting libellous comments about Elliott on Twitter. There is currently no equivalent requirement for claimants to show that a defamatory statement has caused them serious harm under the laws of Northern Ireland.

Belfast-based libel law expert James Griffiths of Pinsent Masons said at the time that the case served to highlight that Northern Ireland is the most "claimant friendly" in the UK for bringing defamation claims.

In a high-profile ruling this March, food writer Jack Monroe won an award for £24,000 in damages from Mail Online columnist Katie Hopkins over two defamatory tweets Hopkins published in 2015.