In this chapter of our Annual Insurance Review 2019, we look at the main developments in 2018 and expected issues in 2019 for media.
Key developments in 2018
It has been a testing year for broadcasters in their defence of privacy claims.
The BBC was required to pay £210,000 in general and aggravated damages to Sir Cliff Richard after it was held that televising a police raid on his home when he was being investigated for alleged sex offences constituted a misuse of his private information. The special damages figure is yet to be determined, but the court has held that Sir Cliff can recover any sums incurred that represent a reasonable attempt to prevent the foreseeable worsening of his reputation, including money spent to prevent publication of other material and sums incurred preventing social media attacks.
Aside from the obvious risks posed by the remarkable damages award in a privacy action, media organisations also fear the decision has had a stifling effect on press freedom, in particular on the ability of the press to cover police investigations and to identify individuals through that coverage.
Meanwhile, in February Channel 5 was required to pay £20,000 in damages to a couple who were filmed being evicted from their property after they fell into rent arrears. Despite accepting that the programme concerned matters of public interest and that there was scope for editorial discretion, the court found that the infringement of the claimants’ privacy rights went beyond what was justified in the circumstances.
Broadcasters should be wary that their coverage is becoming ever more vulnerable to criticism and challenge. Nevertheless, using strong public interest arguments and/or obtaining informed consent from the subjects of any filming remain powerful tools to assist and support investigative journalism.
What to look out for in 2019
Lachaux v Independent Print Limited & another
The seminal case of Lachaux v Independent Print rumbles on through the court system and we can expect a clarifying Supreme Court decision in 2019 on the meaning of the serious harm threshold imported into defamation law by section 1(1) of the Defamation Act 2013.
Section 1(1) provides that “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the Claimant.” This provision aims to raise the threshold for bringing a defamation claim in order to create a more balanced legal framework in a jurisdiction previously known for its claimant-friendly attitude to libel actions.
At first instance, Mr Justice Warby held that section 1(1) required a claimant to prove on the balance of probabilities that a statement had caused or was likely to cause serious harm. As discussed in last year’s Insurance Review, in 2017 the Court of Appeal overturned the decision of Warby J and held that while the threshold for harm has been raised from “substantial” to “serious”, a claimant does not have to prove that their reputation has been seriously harmed at the outset of their claim and the common law presumption as to damage in cases of libel still stands.
Two of the three newspaper defendants successfully applied to the Supreme Court for permission to appeal this decision, which was heard on 13 and 14 November 2018. While a number of other issues were also considered, the main focus by the Supreme Court was on the proper construction of section 1(1). This is the first time the Supreme Court has considered the meaning of the “serious harm” requirement and its practical consequences. It is hoped that its judgment will provide welcome clarity to this contentious issue for both claimants and defendants.
Authored by Nadia Tymkiw.
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