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Limiting Reputational Damage – Rhory Robertson

Rhory RobertsonDespite a surprise rise in defamation claims in 2014, libel actions are largely a thing of the past. The official statistics show a substantial decrease in the number of issued defamation claims over the past few years. For example, in 2013 there were 142 claims as opposed to 186 in 2012. 

This decrease has been brought about for a number of reasons. The first is the change to the legal process introduced by the Defamation Act 2013, which came into force on 1 January 2014. The need to show serious harm and the wide defence of honest comment are reasons why successfully prosecuting a libel action has become a much rarer occurrence.

Litigation costs are also a factor, as well as the social media ‘virus’. Once damaging personal information is in the public domain, it is hard to regain control of it. Regardless of the ups and downs of official statistics, reputation management lawyers are increasingly working with PR companies in advising high net worth individuals in such matters.

Where legal remedies are increasingly difficult to apply, lawyers and advisers are making use of alternative resolutions. There are a variety of PR tactics which can be employed to counterbalance negative publicity, for instance, optimising search engines or utilising the press in an appropriate way.

It is important to remember that wherever negative publicity appears, whether on social media, newspaper print, a blog or website, this information will always be available somewhere. Even if reputation management strategies are employed, the information remains. You can’t be forgotten, and you have no right to be forgotten.

It is becoming increasingly apparent that the so called ‘right to be forgotten’ doesn’t work in practice. If you assume that people use Google from their own jurisdiction and if you have been successful in asking Google to remove the links, then a search would fail to find the story the individual wants forgotten. However, with a simple change, say from to or Yahoo, links to the story, blog or website about the individual will re-appear.

A claim for defamation is one option, however, there may be other legal remedies. For instance, the Protection from Harassment Act 1998 – which has been amended in an attempt to keep up to date with the developments on the Internet – relevant sections of the Data Protection Act 1998, Computer Misuse Act, as well as the law of blackmail.

Increasingly popular and successful are claims brought under the Communications Act 2003. Over the past few years an increasing number of people have successfully used section 127 to prosecute abusive and unpleasant internet trolls. Last year 1,209 people were found guilty of offences under this section, compared with 143 in 2004.

The latest piece of legislation which individuals could use against those seeking to hurt ex-partners’ reputations, is section 33 of Criminal Justice and Courts Act 2015, entitled ‘Disclosing private sexual photographs and films with intent to cause distress’. The more popular term is ‘revenge porn’. It governs the unauthorised online sharing of private sexual photographs or videos.

Although it has always been a crime to share sexual images without the subject’s consent under obscenity laws, scope for civil remedies under the various pieces of legislation mentioned above struggled to provide sufficient redress and few prosecutions have occurred under them. Although no cases have yet been brought under the new legislation, watch this space – I predict a surge in prosecutions.

Rhory Robertson, is partner and head of the Cyber Investigation Unit at Collyer Bristow.  This is part of a presentation given at the ‘Professionalising the Family Office’ conference on 10 June 2015.

1 Comment

  1. JT

    The ‘right to be forgotten’ may not be watertight but it will have a far further reaching effect on reputation law than ‘revenge porn’ and ‘trolling’ legislation, contrary to the suggestion here.

    Google have now removed circa 360,000 URLs while the English courts have shown willing to follow and potentially widen the scope of the Costeja judgment, in the interim decisions of Hegglin and Mosley.

    As to the .com / issue, it is questionable how long Google can resist removal from all domains, particularly in light of the recent action taken by the French data protection authority. In any event, Google claim that more than 95% of European searches are returned by the European specific Google domains.

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