On 17 and 18 November 2020 Inforrm published a two-part post on “Corporate Claimants in Libel Cases, Part 1” and “Part 2” by Guy Vassall-Adams QC, which is an erudite and helpful analysis of the relevant law.

The purpose of this article is not to question that analysis, but rather to challenge Mr Vassall-Adams’ underlying assumption that a viable law of defamation as it applies to corporate entities trading for profit – especially large ones – is inherently undesirable unless “serious financial loss” can be proved (as  Section 1(2) of the Defamation Act 2013 now requires), which he acknowledges may well be difficult for large companies.

One reason for my doubts as to the need of the “serious financial loss” requirement is that as long as basic precautions are taken, such as some moderate level of journalistic endeavour, contacting the company prior to publication, and summarizing its response, the Section 4 “Publication on matter of public interest” should provide adequate protection for prospective defendants. However, as I set out in part 2 of this article, I am no fan of that defence either.

In Part 2 of his article Mr Vassall-Adams says this;

“The main driver for legal reform in the 2013 Act was the strong public interest in free expression about the activities of multi-national companies, some of which are as wealthy and powerful as countries, and the potential chilling effect of enabling them to bring libel claims.” (emphasis added)

It should be remembered however that Article 10 both seeks to protect the right to disseminate “information”, and the right to receive “information”. As I set out below, I believe that properly interpreted, when it come to assertions of fact (rather than of ideas or opinion), the term “information” means assertions that are true, and excludes assertions that are false.

Some confessions

I should begin by saying something about my own perspective on these issues. I have acted for a number of substantial corporate clients on reputation issues as you will see from my website. However, I also have a mixed claimant and defendant practice. I have worked on a number cases to protect good investigative journalism, for which there is the most obvious public need.

My first was for ITV when as a cub lawyer, after months of research I was able to prove the truth of allegations against a local counsellor who was corrupting the planning process using his Masonic connections. Most recently I represented the Huffington Post in the Lachaux action both at first instance and the Court of Appeal.

Finally, I must confess to being a devout Christian, who therefore esteems truth above “free expression” in a way which may not accord with the majority of society. This is because most Christians emphasise (along with Article 10) the responsibilities that go with that right because of the grave damage which can be done to society by irresponsible use of the right to “free expression”.

The balance of power

Where the issue of corporate libel occurs vis-à-vis one of the major Fleet Street titles, or a major broadcaster, they may also be “as wealthy and powerful as countries.” I think in particular of the turnover of Associated Newspapers (£50+million) Reach (£700m) and News Corp ($10+billion). Few of my corporate clients enjoy that degree of financial clout. But these news organisations also have teams of lawyers and legally trained personnel on hand, and use their purchasing power to drive down the charge-out rates of those solicitors’ firms which in exchange for regular instructions are prepared carry out their instructions without qualm.

Associated Newspapers disgraceful record on public health issues

As to Associated Newspapers, it also has form for making assertions on issues of intense public interest which are catastrophically false, and therefore grossly irresponsible. This was well-illustrated by this Hacked Off article which was re-published by Inforrm on 29 November;

In 2002 the Daily Mail published an article wrongly linking autism and bowel disease to the MMR jab.  It took 17 years for the paper to undertake a belated U-turn. The paper has however never accepted fault over this article, which must have changed very much for the worse the lives of many children and their families.

The manufacturer of the MMR vaccine is Merk. It would have been next to impossible for it to prove that sales of a medicine bought only by government would be sufficiently affected to inflict “serious financial harm”. What would be the remedy then to persuade a powerful and hubristic publisher like Associated Newspapers to retract had the publication taken place today? Even if it could surmount the “serious harm” threshold, it would then probably have been defeated by the Defence where the truth or otherwise of the article ceases to be relevant as soon as the Defence is invoked by the defendant. How then would the public interest have been served?

More fake news from Associated Newspapers?

I am taking part in a trial of a Covid 19 vaccine. Were I (perversely) also a campaigning anti-vaxxer I might contact the Daily Mail and tell the paper – falsely – of a wide array of life-changing side-effects that I am suffering, which the paper may then report; which report would then be trumpeted world-wide via the social media by anti-vaxxers the world over.

How many lives would that then be changed for the worse? We know what that newspaper group would and would not do when confronted with evidence that it was wrong – it having a Trump-like blind eye to inconvenient truth. What legal remedy then would both the manufacturer and the general public have? None, for the reasons set out above. What about an IPSO complaint? A six-month wait for an adjudication where there was more than a 90% chance that the complaint would be rejected hardly solves the problem.

An example from my own practice of society being misled about products

One of my corporate clients had invested substantial sums of money in creating a sugar-free version of one of their popular children’s drinks which therefore had no deleterious effect on children’s teeth. It had then spent another large sum of money launching it. BBC’s Watchdog then ran a package suggesting that in fact the drink would damage children’s teeth. On my instruction by the substantial multi-national which owned the brand I asked if I could spend a day with the scientists so that I could entirely understand who was right. By the end of the day I was left in no doubt that the BBC’s science was faulty.

This was prior to the enacting of the 2013 Defamation Act (“the Act”), but after the inception of the Reynolds defence (see Part 2). Even then a libel claim would have been difficult, and none was attempted. The vast size of this corporate client would however have rendered it well-nigh impossible to establish serious financial harm. The effect of this misinformation was that mothers trying to dissuade their children from ruining their teeth by imbibing sugary drinks were robbed of any motivation to substitute this safe product for one which was deleterious to their children’s teeth.

Conclusion

Mr Vassall-Adams does of course have a point in the paragraph I quote earlier in this article about powerful companies. As with all legal issues, the answer lies in asking what provisions best serve society as a whole. As things stand, we have by the press’s lobbying and insistence on not being accountable to anyone but themselves, what purports to be in independent press regulator, but one which is neither independent, nor actually regulates the press.

In Section 1(2) of the 2013 Act we have a near insuperable hurdle which permits large companies are which are “as wealthy and powerful as countries” to mislead us with impunity on issues which are of immense public interest which cannot be compelled by legal or any other means to correct their errors.  I refer, of course, to News UK, Reach (which owns MGN), and Associated Newspapers, the large and powerful corporations which own many of our newspapers.  Society is therefore the inevitable the victim in a country whose craven legislature has permitted these powerful entities mislead society with impunity on matters of immense public interest.

At such a time of national crisis as this such power is truly dangerous, and while MPs appear to be intent on tackling misinformation online, they still have not addressed the elephant in the room; Fleet St behemoths which have been licensed to mislead with impunity and without fear of correction where large companies are concerned – even when erroneous undermining of public confidence in their important society-benefiting products ill-serves the public interest.

Jonathan Coad is the principal of Coad Law