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Defamation claims on the rise in London

The growing use of social media could be a factor behind the 39% rise in the number of defamation claims brought before the courts in London that has been recorded, a media law expert has said.27 Jun 2018

Imogen Allen-Back of Pinsent Masons, the law firm behind Out-Law.com, was commenting after recently published official government statistics revealed there were 156 defamation claims raised before the Royal Courts of Justice in 2017, up from 112 in 2016.

The number of recorded cases was the highest since 2014, when 227 defamation claims reached the courts.

While the figures may merely reflect "year on year fluctuations", Allen-Back said the increasing popularity of social media could be behind the trend of growth in defamation claims.

"The ever-increasing use of the internet as a platform to allow more and more people to, in effect, become publishers is likely to mean that there will be a steady trickle of defamation claims," she said.

Allen-Back said that it is possible that more defamation claims could also be brought in future as a result of a ruling last year on how the 'serious harm' threshold applies under defamation laws in effect in England and Wales.

Under the Defamation Act 2013, people must demonstrate that the publication of a statement has caused or is likely to cause serious harm to their reputation to bring a claim for defamation against the publisher.

Many publishers had thought that the 'serious harm' threshold marked a significant raising of the bar from the previous 'substantial harm' threshold that applied. The new threshold had been seen by many as the centrepiece of a raft of reforms which would make it harder for people to bring trivial claims.

However, in a 2017 ruling, the Court of Appeal said that people bringing defamation claims do not need to prove, at an early stage, that they have suffered, or are likely to suffer, 'serious harm' as a result of defamatory comments made about them for those claims to move to trial. Instead, it can be inferred, from the seriousness of the meaning of the defamatory comments that is established, that serious harm has been caused, or is likely to be caused, it said. Often, defamation trials are preceded by hearings to consider the defamatory meaning of the statements complained of.

The UK Supreme Court granted publishers permission to appeal against the Court of Appeal's ruling earlier this year.

Allen-Back said: The Court of Appeal decision suggests that the threshold for bringing a claim in defamation has scarcely been raised as a result of the serious harm test. That test was expected to stem the tide of defamation claims. If the figures rise significantly in 2018, that could potentially be attributed to the Court of Appeal decision as reversing or undermining the expected effect of the 2013 reforms and emboldening claimants to bring defamation claims."

Allen-Back also said that the recent introduction of new data protection laws could also spur an increase in data protection claims brought against publishers.

The government's official figures do not contain a breakdown of data protection or privacy claims brought before the courts, but Allen-Back said the anecdotal evidence points to there being an increase in such claims.

"We are certainly seeing an increase, and the current increase in claims brought under the old Data Protection Act in the UK alongside, or even instead of, defamation claims is only likely to continue, particularly as a result of the tougher penalties and more stringent requirements introduced by the General Data Protection Regulation (GDPR) and new Data Protection Act," she said.