The US publication, the National Law Journal has an interesting report on the “Top Verdicts” of 2009, setting out the total sums awarded by way of damages by US courts in 2009 for the top causes of action.
In 2009, total defamation damages of US$391 million were awarded by US Courts – a 63% increase on the 2008 figure of US$240 million. The methodology of the “VerdictSearch” report referred to is not clear – but it appears to cover jury verdicts and settlement sums throughout the country. Total damages of US$391 million equates to something like US$1,270 for every 1000 of the population in 2009 and US$790 for every 1000 of the population in 2008.
It is possible to make a very rough comparison with the position in England and Wales using the Media Lawyers Association figures provided to Sir Rupert Jackson, the total sum paid out in 2008 by 9 national newspaper groups and local newspaper publishers was £3,050,217 equals at December 2008 exchange rates, US$4,526,522. The Media Lawyers Association does not cover “non-media” defamation cases and does not cover every media organisation. If we assume that the list covers two thirds of the sums paid out in defamation and privacy damages in then the total 2008 damages awarded and paid out would, in round figures, be US$6.8 million. This equates to the sum of US$126 per 1000 of the population of England and Wales.
In short, the “defamation” damages per head of the population against defendants in England and Wales in 2008 was something like one sixth of the sum paid out by defendants by the United States. The figures are obviously rough and ready but the message is clear: the media has a much greater exposure to defamation damages in the United States than in does in England and Wales.
Of course, the reason for this is clear – defamation awards are very much higher in the United States than they are in England. In most cases in the US, the claimant has the high hurdle of proving malice but, if he succeeds, the damages awards are very much greater. For example, in January 2009 in the case of Cantu v Flanigan a New York City jury awarded US$188 million to a Mexican contractor who claimed that an American businessman severely damaged his reputation.
The size of awards perhaps assists in ensuring that the US media maintain their well known high standards of responsibility. As far as we know, those who campaign for US style media law in this jurisdiction do not advocate the “balancing” feature of large damages awards if malice is established.