In this chapter of our Annual Insurance Review 2018, we look at the main developments in 2017 and expected issues in 2018 in the media sector.
Key developments in 2017
The Court of Appeal handed down the long-awaited judgment in Lachaux v AOL (UK) & Others  EWCACiv 1334 on 12 September 2017. This was the first time the Court of Appeal had considered the meaning of the “serious harm” threshold in section 1(1) of the Defamation Act 2013, which 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.” The provision was designed to strengthen the law of defamation and raise the threshold to be met in order to bring a defamation claim.
Some went as far as describing the Act as the “death of the defamation claim”, and the number of such claims issued per year did begin to decrease. Initial interpretations of the provision made it harder for a claimant to demonstrate at the outset of a claim that their reputation had been seriously harmed.
The Court of Appeal has disagreed with those interpretations, confirming that while the bar has been raised to a threshold of “seriousness”, a claimant does not have to prove that their reputation has been seriously harmed at the outset of their claim. This is likely to lead to a resurgence in defamation claims.
Fortunately, the provision relating to bodies trading for profit in section 1(2) of the Act (that in addition to serious harm, “serious financial loss” must be demonstrated) remains unaffected.
An RPC blog at the time of the decision, which discussed it in more detail, can be found here:https://www.rpc.co.uk/perspectives/data-and-privacy/seriously-limiting-serious-harm.
What to look out for in 2018
The General Data Protection Regulation (GDPR) will come into effect on 25 May 2018. This will have far reaching impacts on almost every industry, and the media industry is no exception.
The current Data Protection Act 1998 already provides for a “journalism” exemption at section 32, and the GDPR allows member states to enact their own exemptions for reasons of freedom of expression. The Government, in the new Data Protection Bill, has broadly maintained the section 32 exemption, expanding its application to apply to the new rights afforded to data subjects. But the wording of the new exemption has not been finalised and is likely to be subject to further scrutiny before the Act is agreed.
Furthermore, the “right to be forgotten”, which allows individuals to ask for their personal data to be erased in certain circumstances, will be enshrined in legislation. Media companies may therefore expect to see arise in such requests being made, especially in relation to historic articles.
Data protection claims are increasingly used as “bolt-ons” to claims against the media for defamation or misuse of private information, often to try and side-step the various thresholds required to be met for either of those claims. Media defendants are increasingly having to deal with this aspect of such claims, and a higher awareness and strengthening of individuals’ data protection rights as a result of the GDPR is likely to lead to a further increase.
Download our full Annual Insurance Review 2018 for more insights.