Media and Law: Overview of Defamation, Privacy and other Media Cases in 2017 [updated]

29 12 2017

In 2017 the media courts heard more defamation trials and privacy injunctions than in either of the previous two years. The claimants succeeded in 60% of the defamation trials and in 62% of the injunction applications. Last year also saw an increased number of appeal judgments in media law cases.

But it is important to note that only two of the defamation trials concerned media publication – and none involved the mainstream media.  The most discussed trial of the year was the “Twitter libel” case of Monroe v Hopkins. Three of the trials were in claims for slander and most of the libel trials concerned disputes between private individuals.  Only two of the privacy injunction applications were against national newspapers.

The highest libel damages award of the year was the sum of £200,000 by Master McCloud, following a default judgment in the case of Zahawi v Press TV [2017] EWHC 1010 (QB).

There were 2 media law cases in the Supreme Court (Flood and Khuja) and 7 in the Court of Appeal.  The most important media law case of the year was Lachaux v Independent Print ([2017] EWCA Civ 1334) which dealt with ‘serious harm’ under section 1 of the Defamation Act 2013 and held that the section raised the threshold from substantiality to seriousness but did not require proof of actual damage to reputation.  There is a pending application for permission to appeal to the Supreme Court.

Defamation

Our Table of Media Law Cases records 36 decisions of all kinds in defamation cases in 2017 (there were 37 in 2016 and 56 in 2015).

There were 10 full defamation trials in 2017 – up from 8 in 2016 and 7 in 2015.  The claimants succeeded in 6 of them (60%) – in contrast to a claimant success rate of 38% in 2016 and 43% in 2015.

The trials were as follows:

  • Monroe v Hopkins [2017] EWHC 433 (QB)(Warby J). A claim for libel arising out of the publication of two tweets.  Damages of £24,000 were awarded.  We had a case preview, trial reports from Days 1 and 2 and Day 3 and a case comment from Nathan Capone.
  • Hourani v Thomson [2017] EWHC 432 (QB)(Warby J). Claims for libel and harassment arising out of a campaign of street protest, online publication and sticker distribution.  Damages of £50,000 for libel and £30,000 for harassment were awarded.  We had a case comment by David Hill.
  • Guise v Shah [2017] EWHC 1689 (QB) (Dingemans J). Claims for libel, harassment and DPA breaches arising out of website publication. Libel damages of £25,000 were awarded.
  • ABC (A Mother) v The Chief Constable of West Yorkshire Police [2017] EWHC 1650 (QB) (Warby J). A claim for slander arising from allegations of child sexual abuse. No serious harm proved and publication was on a privileged occasion.
  • Singh v Weayou [2017] EWHC 2102 (QB) (Nicola Davies J). A libel claim by one employee of Priory Hospital Roehampton against another arising out of an email to managers at the hospital.  The complaint was found to be malicious and damages of £25,000 were awarded.  We had a case comment by Tom Double.
  • Sooben v Badal [2017] EWHC 2638 (QB) (Nicklin J). A libel action arising out of a publication in Mauritius Now.  The claimant was awarded damages of £70,000.
  • David v Hosany [2017] EWHC 2787 (QB) (HHJ Moloney QC). A libel claim arising by a governor of the East London Foundation NHS Trust arising out of publications by another governor to a small number of people.  The defence of qualified privilege was successful.  We had a case comment by Tom Double.
  • Serafin v Malkiewicz & Ors [2017] EWHC 2992 (QB) (Jay J). A libel claim against a Polish language newspaper.  The truth the defence was successful in relation to 7 out of 13 allegations, the public interest defence was successful in relation to all the allegations. We had a case comment by Persephone Bridgman Baker
  • Dhir v Saddler [2017] EWHC 3155 (QB) (Nicklin J). A slander trial in which the claimant was successful and was awarded damages of £35,000
  • Pannu v Carter [2017] EWHC 3270 (QB) (Sir David Eady). A slander claim brought by the operator of a taxi service against a competitor.  The claim failed because special damage was not proved and, in any event, the publication was subject to qualified privilege.

There were 5 “damages only” trials  or hearings in 2017 (there were 3 in 2016)

  • Barron v Collins [2017] EWHC 162 (QB) (Warby J). An assessment of compensation following the acceptance of an offer of amends in relation to statements made in a speech at the UKIP Party Conference. Each claimant was awarded damages of £54,000.
  • Lisle-Mainwaring v Associated Newspapers [2017] EWHC 543 (QB)(HHJ Parkes QC). An assessment of compensation following the acceptance of an offer of amends relating to two articles in the Daily Mail. Compensation was assessed in the sum of £54,000.
  • Harrath v Stand for Peace Ltd [2017] EWHC 653 (QB)(Sir David Eady). A libel claim arising out of online publication of an allegation that the claimant was a guilty of terrorism.  Damages of £140,000 were awarded.
  • Zahawi v Press TV [2017] EWHC 1010 (QB) (Master McCloud).  A libel claim arising out of website publication of an article alleging involvement in ISIL’s oil trading.  Damages were assessed at £200,000.
  • Woodward v Grice [2017] EWHC 1292 (QB)(King J). A libel claim arising out of website publication, damages of £18,000 were awarded.

There were also a number of “preliminary issues trials” and summary judgment applications, in particular:

  • Butt v Secretary of State for the Home Department [2017] EWHC 2619 (QB) (Nicol J).  Trial of a preliminary issue as meaning and whether the words complained of were fact or comment. We had a case comment by Natasha Holcroft-Emmess.
  • Brown v Bower [2017] EWHC 2637 (QB) (Nicklin J), Trial of a preliminary issue as to meaning and whether the words complained of were defamatory. We had a case comment by Emma Foubister.
  • Pirtek (UK) Ltd v Jackson [2017] EWHC 2834 (QB) (Warby J). Judgment in default and summary disposal under sections 8 and 9 of Defemation Act 1996.  Damages of £10,000 were awarded.  A declaration of falsity was refused but a Press Summary was prepared which the claimant could publicise.
  • Kozbar v Telegraph Media Group (11 December 2017)(HHJ Moloney QC).  Trial of a preliminary issue as to meaning.
  • Alsaifi v Trinity Mirror Plc & Board of Directors (Nicklin J) [2017] EWHC 2873 (QB). A claim for libel was dismissed because the words complained of were incapable of bearing a defamatory meaning.

 There were 6 Court of Appeal judgments dealing with issues arising in defamation cases:

  • HH Prince Hicham Ben Abullah Al Alaoui v Elaph Publishing [2017] EWCA Civ 29. The defendant’s appeal against the Judge’s findings on meaning and on an amendment to add a DPA claim were unsuccessful.
  • Otuo v Watchtower Bible and Tract Society of Britain [2017] EWCA Civ 136. Appeal allowed against the Judge’s refusal to disapply the limitation period in an action for slander.
  • Mionis v Democratic Press SA([2017] EWCA Civ 1194). Appeal allowed against the refusal of the judge to enforce a settlement agreement in a libel action.  We had a case comment.
  • Lachaux v Independent Print [2017] EWCA Civ 1334. The defendants were unsuccessful in an appeal against the judge’s finding that the words complained of caused serious harm to the claimants’ reputation. We had a comment from Iain Wilson and Tom Double and one from Nicola Cain.
  • Lachaux v Independent Print [2017] EWCA Civ 1327. The defendants were unsuccessful in an appeal against the judge’s decision that the defendants could not rely on confidential and legally privileged documents.
  • Bukovsky v CPS [2017] EWCA Civ 1529: The claimant was unsuccessful in an appeal against an order dismissing his libel claim because the words complained of were not defamatory of him.

Privacy and Breach of Confidence

There were no trials in claims for breach of confidence/misuse of private information (in contrast to 4 in 2016 and 4 in 2017).

There were a number of reported interim decisions in the case of Sir Cliff Richard v BBC – due for trial in 2018 (see [2017] EWHC 1291 (Ch); [2017] EWHC 1666 (Ch)).

Mann J continues to manage both the News Group and the Mirror Group phone hacking litigation.  There were no trials in 2017 – although one is listed in January 2017.

We are aware of 8 applications for interim injunctions in privacy and breach of confidence cases in 2017 (there were 5 in 2016).  Of these, 5 were successful and 3 were unsuccessful.

  • ZXC v Bloomberg [2017] EWHC 328 (QB). An unsuccessful application for an injunction to restrain publication of information concerning a criminal investigation.
  • AJS v News Group Newspapers (10 March 2017, Nicol J). A successful application for an injunction to restrain publication of information concerning an arrest at the claimant’s home.  There was a public judgment but this remains unavailable.  We had a news item about the case.
  • Brevan Howard v Reuters [2017] EWHC 644 (QB). A successful application for an injunction to restrain the publication of confidential information concerning a hedge fund (the defendant’s subsequent appeal was unsuccessful, see below).  We had a case comment by Edmund Roper.
  • Makin v News Group Newspapers [2017] EWHC 1386 (Ch). An unsuccessful application to restrain the publication of the contents of Ian Brady’s will.
  • Leigh v Channel 4 (15 June 2017)(Popplewell J). An unsuccesful application for an injunction to restrain broadcast of  footage showing the claimant who consented to the filming. There does not appear to be a public judgment.  We had a news item about the case.
  • RJH v News Group Newspapers (21 June 2017)(Warby J). [Update]   There was a consent order, containing undertakings accepted by the judge. News Group gave undertakings not to use, publish or communicate or disclose the of the fact that the claimant was arrested on suspicion of rape or any information which was liable to identify the claimant as a party to the proceedings or the subject of the information. The undertakings were given at a public hearing and no judgment was given. An injunction to restrain publication of the fact that the claimant was arrested on suspicion of rape.  There was no public judgment but there was a news story in the Sun.  The injunction was undertakings were discharged in November 2017 after the claimant issued a statement in the US referring to the arrest.
  • LJK v Person(s) Unknown [2017] EWHC 3230 (QB).  A successful application for an interim injunction restraining unknown defendants from publishing allegations of serious criminality.  We had a case comment by Max Campbell.
  • GYH v Persons Unknown [2017] EWHC 3360 (QB). A successful application to restrain a campaign of harassment by publication of actual or purported private information.

There was one Court of Appeal judgment in a breach of confidence case involving the media:

  • Brevan Howard v Reuters [2017] EWCA Civ 950. The defendant unsuccessfully appealed against the judge’s grant of an injunction to restrain publication of confidential information from a hedge fund. We had a case comment from Louise Turner.

There was one case in the Supreme Court:

  • Khuja v Times Newspapers and others [2017] UKSC 49, by a majority of 7:2 the Supreme Court dismissed an appeal against a refusal to grant an injunction to restrain the identification of a suspect in a criminal case whose name had been mentioned in open court. We had a case comment by Aidan Wills and a comment by Robert Craig.

Conditional Fee Agreements

On 11 April 2017 the Supreme Court dismissed the appeals of the media in the cases of Flood v Times Newspapers, Miller v Associated Newspapers and Frost and others v MGN [2017] UKSC 33), upholding the conditional fee agreements in those cases.

We had a case comment from Aidan Wills and comments from a claimant’s perspective, a defence lawyer’s perspective and the perspective of someone who acts for both claimants and defendants.


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