Plans announced to cut defamation costs

The government has finally announced that the escalating cost of legal fees in defamation actions will be controlled. This is good news for defendant lawyers and their (predominantly) media clients who have been at the receiving end of many disproportionate settlements in recent years.

The English courts and London have for too long upheld the accolade of being the global capital for libel tourism. We’ve had Saudi plaintiffs suing American papers, foreign film directors evading extradition by giving evidence by videolink and closer to home seen the likes of the Times being hammered with damages and costs for printing the view that a football boss had behaved ‘shabbily’.

To compound the complaints advanced by the press, the spectre of conditional fee arrangements has allowed plaintiff lawyers to levy a success fee, often at premium rates, that can lead to the costs that come with a damages award having an unduly punitive effect on the final bill faced by defendants.

Plaintiffs and their lawyers will no doubt feel that the greater the punishment faced by the press the better. This may have the benefit of deterring them from heinously libeling the innocent. But to the extent the press should be brought to book for outrageous and unsubstantiated libels, they should not be subjected to a threat of costs that could make them hold front pages that the public may have a right to know about.

Rather than have a chilling effect that freezes free speech, there should be a cool wind that blows through newsrooms and reminds editors to keep their stories and sales targets in line with the law.

So it is welcome news that the government has launched a consultation paper that will examine how better controls can be implemented to curb the excessive costs that have crept into defamation litigation over the years. The consultation paper will complement evidence that is due to be heard by the Commons Culture, Media and Sport Select Committee about the effects defamation fees are having on the press.

Justice Minister Bridget Prentice said the new proposals were designed to “bring more effective cost control to litigation in defamation proceedings and to ensure that costs in this area are more proportionate and reasonable”. Their aim is to “ensure that people's right to freedom of expression is not infringed, and media organisations continue to report on matters of public concern" said Prentice.

The government is also considering proposals that would include:
• limiting recoverable hourly rates by setting a maximum or fixed rate
• compulsory cost-capping or compulsory consideration of cost-capping in each case
• requiring the proportionality of total costs to be considered on cost assessments conducted by the court.

More from BBC and The Independent

Libel costs - claimant and defendant lawyers put their case to the politicians

As is discussed in Mediabeak's other postings (Plans announced to cut defamation costs and Guardian editor sees libel lottery oddsevenly stacked between claimant and defendant) pressure is mounting to tackle the costs associated with libel actions. The government has announced proposals to review the issue and the Culture, Media and Sport Select Committee is currently hearing submissions from lawyers about the effect fees, in particular conditional fee arrangements (CFAs), are having on libel actions.

The press and their lawyers have been highlighting the deterrent effect recent actions are having on papers, particularly smaller regional titles, risking investigative stories. Claimant lawyers are less charitable and see the current status quo as being justified to ensure their clients reasonable access to justice.

Neither have the moral high ground - the press sometimes take calculated risks to secure a high profile story and sell papers, while claimant lawyers often profit handsomely from using CFAs - but the application of libel laws under the current rules need revision. Hopefully the current consultation process will result in some sensible revisions that achieve a balance between safeguarding free speech while providing those unfairly defamed access to remedy.

A full discussion is on MediaGuardian

Related articles:
No win no fee cases
I won't see you in court

Guardian editor says libel lottery sees odds evenly stacked between claimant and defendant

In response to the media bleating about being bashed by libel costs, claimant lawyers will often cite the gross injustice their clients face and that were it not for conditional fee arrangements, these poor claimants would have no power to get justice and fight back against the big bad media bastions. There is truth in this insofar as many members of the general public have been able to be compensated for having their reputations unduly trashed by the press.

But it is more often than not celebrities or high profile individuals (and their lawyers) who profit from the CFA schemes – the prime example to date being Naomi Campbell’s case against the Mirror for exposing her drug addiction (OK so she fought the case as a privacy based one but that was only because she couldn’t run a libel action as what had been exposed was true – so she relied on a privacy and confidentiality action. Read many of the judgments at the appeal and House of Lords stage and it might as well have been a libel case).

The Guardian is still reeling from its run in with the mighty Tesco. The paper had wrongly (as it turned out) suggested the supermarket giant may have been creatively steering clear of certain taxes. That little outing and settlement was seriously expensive for the Guardian, which is contesting a bill for £800,000 it has just received from Tesco’s lawyers.

So its not surprising its editor, Alan Rusbridger, is saying the playing field when it comes to libel is not one of big media versus small innocent victim. He cites recent research that shows the cost of fighting a libel action in England and Wales was 140 times higher than in the rest of Europe.

Rusbridger has consistently said there should be more debate and discussion of what the public should expect from the press and how this should be regulated. He says the press need to keep themselves in check but that the politicians can no longer bury their heads in the sand.

Mediabeak would add to this that there is plenty of sand in Iraq which the government are currently trying to keep much – such as the papers over the decision to go to war there – buried under). So it is high time that politicians, the press and public need to engage over what is an appropriate balance between freedom of the press and informing the public on the one hand, and bringing the press to book where justified, on the other.


Mail says sorry to mums for adoption slur

As mediaguardian reports, the Daily Mail has been forced to apologise to four women after suggesting they opted for adoption to preserve their looks and careers.

The four women had been named in an article that appeared in the Femail section of the Mail last November. Its headline “How women are so afraid of losing their careers or their figures they’re choosing adoption over childbirth” (short and snappy title then!) clearly set the tone for the overall piece. However the women in question had in fact opted for adoption due to medical and other reasons.

This shows the risk of suggesting one theme in a headline and then featuring people who do not fit that theme. If you set out the headline like this then that implies that those you feature fit with it. If they don’t then you should come up with another headline.

The women complained to the PCC who helped them secure an apology – which for once was moderately prominent.


BBC Middle East coverage - Law Lords give free expression a boost

The House of Lords has today dusted down its wigs and banged its gavel and drawn an important line in the sand in relation to political suppression of world news.

Backstory to this is that the BBC had come under scrutiny for its coverage of the middle east conflict - specifically the Israel-Palestine conflict (which is again topical and deserves more discussion...but not for now or will be here a long time).

The BBC commissioned a report from its previous nine o'clock news editor, Malcolm Balen into its coverage. The findings of the report were never disclosed and have been hidden behind an exception under the Freedom of Information Act that allows for material gathered for the purposes of 'journalism,art or literature' to be excepted from disclosure. The FOA has more loopholes than ripped fishnet stockings but it seemed perverse to acknowledge that its coverage required a report to assess it and then keep it suppressed.

At an Information Tribunal stage the BBC had run with the argument it was entitled to suppress the report. What today's ruling confirms is that the tribunal did indeed have the right and power to review the decision.

The judgment is a significant milestone but it does not guarantee or force any disclosure. It merely establishes the right to review.

More from mediaguardian


Express pays out to Pentagon Capital - Desmond in the frame

As Mediabeak reported last week, The Sunday Express has today been in court to confirm its agreement to pay undisclosed libel damages to Pentagon Capital Management over a story that claimed the firm was intending to withold £1bn of its investors funds.

As reported on mediaguardian it seems the article was prompted by the paper's proprietor Frank Desmond.

Roy Greenslade certainly thinks that Desmond is a 'rogue proprietor'. Mediabeak's own research into the days the Express has spent in the dock in recent times certainly supports the argument that its standards and editorial influences are keeping its lawyers busy. For example, the paper's coverage of the Kate and Gerry McCann was about as excessive and irresponsible as it gets - August 2007 saw nearly every front page devoted to some unsubstantiated claim in relation to the disappearance of Madeleine McCann.


Press regulation under fire - Media Standards Trusts says PCC is failing

In its report 'A more accountable press' published today, the Media Standards Trustsays that the public thinks more needs to be done to tackle the inaccuracies and intrusion regularly practiced by the media. To back this up, the Media Standards Trust commissioned and is citing research by YouGov that claims (based on an extrapolation of their sample) over 75% of the public believe that the media publish stories they know are inaccurate.

Put bluntly, the claim is that the majority of the public think the media lie or make up stories and that the self-regularoty system that exists in the form of the Press Complaints Commission (PCC) is inadequate in dealing with the problem.

The key findings of the report (as extracted from the report)include:

Changes in the way that news is gathered, edited, packaged, published, marketed, delivered and consumed raise fundamental questions about news content regulation which the Press Complaints Commission has not yet sought to address

Given the increased technical challenges and financial pressures that news organisations face, combined with the explosion of user-generated-content, there is an increased risk of inaccuracy that self-regulation is not structured to deal with

There is evidence to suggest that the press’s need to capture public attention and maintain circulation is leading to greater levels of intrusion and invasion of privacy

70% of the public believe there are ‘far too many instances of people’s privacy being invaded’

Trust in journalists is low and may be declining further. 70% of people think newspaper editors cannot be trusted to ensure their journalists act in the public interest

The current system of self-regulation lacks transparency and accountability, has conflicting interests and is not equipped to meet the regulatory challenges now facing the press

Lack of confidence in self-regulation is encouraging some people to go to the courts, creating a precedent-based privacy law which threatens to marginalise self-regulation and has the potential to constrain press freedom

As reported on MediaGuardian PCC Chairman Sir Christopher Meyer has hit back against the Media Standards Trust claims. He says the report is selective, based on emotive 'sound bites' and is not representative.

So here we have a clash between the arguably self appointed press watchdog and the self-appointed monitor of standards. The debate today's report has and will generate is to be welcomed but as Mediabeak will argue, neither side is right or has the moral or legal argument here.

The PCC has been much maligned in recent years and been called 'ineffective' or a 'toothless' regulator. Its impotency lies in the fact that it is not legally constituted and has no legal power to sanction the press for breaching its code. Its historical make-up is that of an organisation created by the press for the press. It is therefore seen as partisan. Mediabeak, who has conducted much research into the decisions of the PCC concludes that the problem the PCC has - and consequently the lack of faith that may be seen among the public in relation to the PCC - derives from the fact that it cannot fine or seriously sanction wrongdoing. This causes a problem in that whether it is an aggrieved party or shocked public, both expect to see some form of sanction or punishment. The PCC does not have the tools for a 'grandstanding' censure of a publication.

In defence of the PCC Mediabeak would argue that within the terms of its remit it has sought to flex its muscle and profile as much as possible. The numerous cases that are resolved or proactively dealt with 'under the radar' by - or brokered through - the PCC largely go unnoticed and do play a large part in the work it does. So to turn to the deficiencies and challenge laid out by the Media Standards Trust report what is the answer?

Mediabeak is clear on this. What we need is a proper study into what the public want from their media and press. Times and technology have significantly moved on from when such rules as exists were put togther. The PCC is doing what it can within its remit but - as the Media Standards Trust (YouGov) research shows - the public are not convinced by what is being done. What we need is not a knee-jerk reaction to one report but a considered review of the dramatically changed and changing landscape in relation to how the media operate, its interaction with its audience and changes in the laws of defamation and privacy.

To achieve the standards that are acceptable to the public, the puclic first needs to be engaged and made part of the process that shapes the standards by which their media should operate. Mediabeak's view is that to the extent the PCC is ineffectual, it has not been given the proper authority, status and tools to make it so. Its failure to clamp down on media abuse and prosecute excess is down to its remit and powers rather than willingness to exercise them. Given greater power the PCC would gain credibility among the press and - in exercising such power - would gain the respect and trust of the public.

There are two options. Either equip the PCC with the tools it needs to do its job or get rid of it and come up with some othr form of regulation. Mediabeak suggests that the PCC has the infrastructure to do what it should - all it needs is an injection of potent remedy to make its views and decision count.

Clarkson - Thatcher - give us a relevant front page

OK so we've had over 2000 people rally against the BBCs decision to 'axe' Carol Thatcher and people are lining up to pin prick a voodoo doll of Jeremy Clarkson but given what havoc and turmoil our governments are wreaking across the world at this time is it really the case that the words of two moderately significant television personalities should be dictating the media agenda? No.

Get a grip world. Mediabeak has already discussed Carol Thatcher's views so turning to Jezza Clarkson, what is the big deal? Well what is happening here is that his profile has gathered 'traction' to the extent that what he says on his various media appearances matters. His 'controversial' views would normally be dismissed as those of a saddo down a suburban or home-counties pub. As his audience and 'influence' are broader we therefore rate his rantings more highly. His 'thing' is to try to be controversial or shock - so say some outrageous things about other countries or the focal capabilities of the UK premier and there is bound to be publicity.

What's gone wrong here is that the politicians have run out of anything interesting to say and the cars being reviewed by Jeremy et al are devoid of anything spectacular enough to trump the political agenda and both are left exposed. A big budget and a fast car have historically failed to deliver substance - so, in the current climate, where fact counts for more than theory, political positioning or spin, Clarkson's views are becoming as irrelvant as those of the politicians.

So the outrage expressed by politicians in the UK is as misplaced as the shock Clarkson sought to cause through his comment - both are posturing and irrelveant. Clarkson should stick to commenting about cars and politicians should stick to playing their political game - stray off the pitch in search of a quick goal and both parties are likely to come unstuck.


Golliwog-gate - an insult to race relations and media regulation

The BBC should be ashamed of itself. What Carol Thatcher said was indefensible, out of touch and certainly should never have been broadcast - but it wasn't. What the BBC has done is to broadcast her comment indirectly. It is the BBC that has caused - through press lobbying and leaking - for these offensive comments to make national news headlines. So who is more to blame, Thatcher or the BBC.

The BBC. Thatcher offended a handful of people in one of the BBC's 'Green Rooms' but the decision to 'out' and make public her remarks through pushing them out to the press have made them more offensive than need be. It is making an issue out of this that is as offensive as the comment itself. Since when have Adrian Chiles and Jo Brand been the public arbiters of politically correct comment? Pretending to be 'right on' and race aware when as a society the country may not be is in fact more offensive.

The golliwogs that originally appeared on the Robertson's jam jars were less offensive than the issue being created around them now. The original version was created in a different age and used as a brand identity. Why people are getting exercised about this now is because they are not comfortable about being honest about the interaction of different races, colours and creeds. A 'golliwog' as initially conceived many years ago does not of itself need to be racist. What is disturbing is the fact that in 2009 the UK as a society is that uncomfortable about how it blends its identities and cultures into a truly modern Britain.

Those who make most fuss about uncomfortable - and indeed indefensible - stereotypes are more often than not also least attuned to our current societal make-up. In this sense the BBC's overblown posturing about outrage says as much about its 'chip' on its shoulder as it does about Carol Thatcher. What she said was outrageous and indefensible but was (arguably) not said to cause offence, while the BBC's outing and making an issue out of the 'affair' is more troubling and offensive.

So does Golliwog-gate merit 3 days of news headlines - no. Find some real news and sort out the more worrying racial tensions surrounding strikes and claims that foreign (we are part of the EU folks!) workers are heinously stealing our jobs.

Using the race card to make an issue to position the BBC favourably is actually more offensive than Carol Thatcher's comment. She was out of order but, sadly, probably not the only out of touch person in the country to fail to see and acknowledge her indefensible approach and views. What the BBC has done is to exploit the situation and 'race card' to try to make itself as a corporation seem good. Well it's not. That is a patronising and naive approach. Offence is not borne out of a single statement but moulded by an overall attitude and the levels of disrespect shown by the likes of Ross and Brand's 'Manuelgate' are arguably much more disturbing.

Out of touch, daughter of the much mailigned Iron Lady (Thatcher), come on BBC - the need is to increase editorial rigour across non news broadcasr and improve compliance - trying to 'position' or score points after an event is transparent and disappointing.

Express pays out over allegation fund manager "hoodwinked" small investors

The Sunday Express has agreed to pay 'substantial' libel damages to a fund manager and its executives over an article that alleged they were exploiting investments from small investors for their own personal gain.

The case relates to the Express headline in July 2008:"David Cameron’s friend and £1bn he won’t give back." That article suggested that the executives of a fund management company, Pentagon Capital Management, were using investors' funds for their own gain with no intent of repaying them.

It was basically a stitch up and secured traction in the media by virtue of the fact that one of Richard Desmond's family members had investments in the funds. Surely, Desmond was not seeking to use one of his publications to put forward this allegation?

As it happened such allegations as were being advanced could not be substantiated by Express Newspapers. Motto of the story is that even if you own a paper, if you can't make what you allow to be printed in it stand up then you are open to legal action.

So what the fund managers may have lost in performance on the markets last year they may have made up through their libel settlement.


London Lite says sorry to Walliams for faking it with Peta Todd

Freesheet London Lite was today forced to run an apology to Little Britain star David Walliams after it faked a picture that made it seem he was together with the Sun's page 3 model, Peta Todd. The picture that appeared with a piece suggesting "Walliams swaps his page 3 playmate" in October last year was in fact a montage.

There have been numerous cases in recent years where newspapers and magazines have been sued over mock-ed up or montaged photos used to stand up a story. Where a montage is used it should be labelled as such - but that would spoil some of the fun! One way round is to insert a rip or thin line instead of an actual label.

Having recently won a libel payout together with Matt Lucs, Walliams had opted to pursue this claim out of court and through the Press Complaints Commission. To what extent an apology on page 8 of today's London Lite counts or is sufficient is up for debate. If papers were forced to print their apologies on the front page then that might seem fairer - but the PCC can't force them to do that and so has to ask nicely and broker a compromise.

So who has David Walliams been out and about with:
He likes the models - was there nookie with Cookie?
Or was it lingerie shopping with Lisa that tickled his fancy?

BBC in libel payout over Newsnight charity terror link claims

Not the usual suspect when it comes to libel payouts, the BBC's Newsnight programme was at the centre of a dispute that resulted in the corporation having to pay substantial libel damages.

In August 2008 Newsnight broadcast a report suggesting charitable funding from Children in Need that had been paid to a school in Leeds, had in fact been siphoned off and used to fund radical propaganda and assist the terrorists behind the 2005 July 7 bombings in London.

Hanif Malik who was chairman of the trustees to the school in question, Leeds Community School, thought that the BBC report was defamatory by implication given his close ties to the school and community.

Although the BBC report had not actually named Malik, he was able to secure today's payout on the basis of the possibility of his being identified and consequently suffering damage to his reputation.

This case is interesting on two points:
First, it highlights the risk broadcasters (and the media generally) face where they run a report from which someone could be identified as being implicated in the defamatory allegations. As the law stands the claimant does not have to show that he was actually identified and defamed, merely that the report has the potential to defame him. It is therefore for the media, in this case the BBC, to show that what it reported was true and that any implication or innuendo that could be drwn from the facts was justified in relation to the object of such innuendo. In this case it clearly couldn't or the BBC wouldn't have been persuaded to get out its chequebook and settle.
Second, it demonstrates that when producing a report that contains serious accusations and seeks to link one set of facst to another. In this case it could show that the Leeds school received charity funding. It also drew the inference that monies had been supplied locally to fund the publication of radical Islamist pamphlets and support the terrorists behind the July 7 '05 bombings. What the BBC was unable to do was to prove a causal connection and link between the two.

So in this case Newsnight's report came unstuck because it couldn't substantiate the inference its claims sought to make AND because behind those claims was a person who thought he could be personally implicated by them. The BBC has perhaps been reminded what the papers experience on a more regular basis, that the burden of proving ones story in court and defending it weighs heavily on the media.