Media

In this chapter of our Annual Insurance Review 2023, we look at the main developments in 2022 and expected issues in 2023 for Media.

Key developments in 2022 

Mrs Justice Steyn dismissed a libel claim brought by Arron Banks against the investigative journalist Carole Cadwalladr, in a decision widely celebrated as an important victory for press freedom and public interest journalism. Banks, the largest donor and head of the pro-Brexit Leave.EU campaign, sued Cadwalladr over comments made in a TED Talk and a Tweet relating to interference in democratic elections and his relationship with the Russian government. 

The judge held that Banks had initially met the threshold for serious harm in respect of the TED talk, but not the Tweet. She also accepted that, despite the fact that Cadwalladr had intended to convey a different defamatory meaning to the one which was found by the Court, she had nevertheless made out her public interest defence under s4 Defamation Act 2013. 

However, Cadwalladr's reasonable belief in the public interest (a key element to the defence) ceased after the Electoral Commission's later determination that there was no evidence that Banks had broken the law. At that point the defence fell away. Nevertheless, the judge found that continued publication after this time did not cause Banks serious reputational harm. Banks has been granted permission to appeal this part of the judgment. The appeal will consider whether the court was correct to redetermine the serious harm test at the time the defence failed (as opposed to referring back to the original determination at the time of publication).

Mrs Justice Steyn's judgment is a welcome victory for public interest journalism, free speech and public participation. It will be interesting to follow the outcome of the appeal, particularly how the courts will interpret and apply the serious harm requirement in cases where a defence ceases due to a change in circumstances after the original publication.

What to look out for in 2023

In July 2022, the Government published a response to its Call for Evidence regarding the prevalence of 'Strategic Lawsuits Against Public Participation' (SLAPPs) in the courts of England and Wales, signalling its intention to bring in reforms to this controversial area. 

There is no legal or statutory definition of SLAPPs, but the term is used to describe litigation threatened or brought by powerful and wealthy individuals or corporations against reporters and publishers. The aim is to intimidate and censor them, stifling acts of public participation which are of societal importance. This issue has been thrown into sharper light following Russia's invasion of Ukraine, which highlighted the need to dispose of baseless legal claims threatened by oligarchs and Russian-controlled entities connected to Putin's regime.

The Government has committed to introducing a statutory early dismissal process to avoid protracted and expensive litigation by identifying and striking out SLAPPs at the earliest opportunity. It will apply to any claim, including in defamation, data protection, or privacy. The three parts will include:

a) A definition of public interest.

b) A set of illustrative, non-exhaustive factors for the courts to determine whether a case should be classified as a SLAPP.

c) A merit test.

Cost exposure is often the most significant element of SLAPPs which overwhelms and intimidates defendants. To tackle this, the Government has also proposed a cost protection scheme designed to shield SLAPP defendants from excessive cost risk. 

It remains to be seen exactly how these reforms will be formulated in legislation, but it is hoped that once implemented, they will reduce claims aimed at stifling public interest publications.

Download our full Annual Insurance Review 2023 for more insights.