I’m going to the press! – the challenges of complaints handling

Betul Milliner Senior Associate DAC Beachcroft LLP 1 March 2018 Betul Milliner . Senior Associate at DACB Beachcroft LLP . Specialise in advising on . Healthcare disputes . Reputational risks . Defamation . Harassment This talk will be covering: . Defamation law

. Online reviews and social media platforms

. Dealing with the threat of the media

. Harassment – what are your options? Lord McAlphine libel row with Sally Bercow formally settled in high court Sally Bercow has apologised for ‘irresponsible use of Twitter’ and agreed to pay undisclosed damages to peer, court told

Why is Lord McAlpine trending? *Innocent face*

The Lord McAlpine of West Green v Sally Bercow [2013] EWHC 1342 (QB)

. Jane Collins v Labour MPs

. ] Katie Hopkins ordered to pay out £131,000 after losing Jack Monroe libel case appeal 'The price of not saying sorry has been very high', the food blogger's lawyer says Charlotte England /@charlottengland / Thursday 30 March 2017 15:47 BST 33 comments

Monroe has won £24.000 in damages in a libel action against Katie Hopkins Scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom. Grandma got any more medals?

Jack Monroe v Katie Hopkins [2017] EWHC 433 (QB) Ukip MEP ordered to pay £162,000 in libel damages to Labour MPs Jane Collins claimed in conference speech that three MPs knew about Rotherham child abuse scandal, but chose not to act

Jane Collins outside the Royal Courts of Justice in London. She argued that the speech was political and expressed an opinion. Photograph: John Stillwell/PA An estimated 1,400 children had been groomed, raped, trafficked for sex, over a period of 16 years…there are many others that still have questions to answer, and possibly charges to face. This includes the three Labour MPs for the Rotherham area. I am convinced that they knew many of the details of what was happening…Together the Labour party betrayed the children of Rotherham.

Sir Kevin Barron MP, RT Hon MP, MP v Jane Collins MEP [2015] EWHC 1125 (QB)

What is a defamatory statement?

“Does the statement tend to lower the claimant in the estimation of right- thinking members of society generally?” (Sim v Stretch (1936) 52 TLR 669 HL)

What is a defamatory statement? . A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

. Harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss (section 1 Defamation Act 2013)

Publication . Libel – written form

. Slander – spoken, or other temporary form . Proof of the actual words spoken . Specific financial loss unless there is an . Imputation of a criminal offence . Disparagement of an office, profession or trade

. Published to at least one person other than the claimant

Publication . Each communication of defamatory material is a separate “publication”

. 12 month limitation period from each “publication”

. Single publication rule – the cause of action for subsequent publications accrues from the first date of publication.

Defences . Truth . Defamatory statement is true or substantially true . Burden on the defendant to prove truth

. Honest opinion . Defamatory statement is an opinion not a statement of fact . Statement indicated the basis of the opinion . Identifiable factual or privileged basis of opinion . Defeated if the defendant did not hold the opinion

Defences . Publication on a matter of public interest . Defamatory statement was on a matter of public interest . Publisher reasonably believed that the publication was in the public interest . Absolute privilege . Qualified privilege . Defendant had a duty to publish the statement and the recipient had a legitimate interest in receiving it . Defence defeated if Defendant acted maliciously . Defence for operators of websites

Remedies . Damages

. Injunction

. Publication of a summary of the court’s judgment

. Court order to remove the defamatory statement

. Offer of amends

Threat of an online publication . Invite engagement through the pre-action protocol for Clinical Negligence

. Keep your correspondence professional, formal and courteous – the patient may publish your response

. Acknowledge that a patient can publish, but remind them of the limits about what they can say

. Consider a without prejudice face to face meeting

Negative online reviews/statements . Immediately “report” the review/statements if this option is available

. Check the website or internet service provider guidelines and engage with them

. If the statement is defamatory and damaging, get legal advice Threats to go to the media . Engage with the media

. Explain your version of events

. Leverage any links with editorial staff through marketing or PR teams

. If the media publication is likely to be defamatory, get legal advice

Harassment . Protection from Harassment Act 1997 . A person must not pursue a course of conduct which: . Amounts to harassment of another; and which . He knows or ought to know amounts to harassment of the other (section 1) Or . Involves harassment of two or more persons; and which . he knows or ought to know involves harassment of those persons; and . by which he intends to persuade any person to not to do something that he is entitled or required to do or to do something that he is not under any obligation to do (section 1A)

Harassment . No statutory definition of harassment:

the person whose course of conduct is in question ought to know that it amounts to [or involves] harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to [or involved] harassment of the other” (section 1)

. Harassment must include: . Alarm or distress . A course of conduct = at least 2 occasions . Aggressive, bullying or threatening behaviour (Saha v Imperial College [2013] Ell ER (D) 54 (Aug)

Harassment . 6 criminal offences . Harassment . Fear of violence . Stalking . Stalking involving fear of violence/serious alarm/distress . Breach of civil injunction . Breach of restraining order

. One civil tort of harassment . Damages . Injunction Harassment – practical tips . Collect detailed evidence of the patient’s conduct.

. Limit and minimise contact – take control of how they can contact you.

. If patient’s conduct becomes threatening, seek legal advice and consider calling the police.

Questions?