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Protect Against Defamation and Privacy Actions inbrief Protect against Defamation and Privacy actions Inside Protection and Prevention Prevention Checklist Publications at Risk What to do if a complaint is made inbrief Introduction Protection and Prevention What is in the public interest covers most things The law of defamation and also the which are in the public eye and which are In both defamation and privacy “protection” and law of privacy is at a watershed. Since important because of political, moral or other “prevention” are watchwords. the beginning of 2010 the media reasons. The debates over parliamentary expenses have stepped up their campaign for a In the event of a claim speedy action must be or assisted suicide are obvious examples. taken. What follows are some hints and reminders change in our laws, for more flexibility But the public interest does not necessarily cover as to what to do in the event that potentially those whose private lives are being investigated; and a greater ability for freedom of defamatory material may be published or if rights we all have our own private space and a expression to be paramount. This has to privacy may be breached. been much more evident since the reasonable expectation of privacy which can When looking to publish an article or if you are a be protected. In assessing rights to privacy the Human Rights Act 1998 incorporated PR agency, trying to promote your client, the first golden rule is to carry out a balancing exercise the European Convention of Human question to ask yourself is what are you trying between freedom of expression on the one hand Rights. to say, what point are you trying to make? It is and privacy on the other. The well known model vital that if you are using facts that your facts are Naomi Campbell was photographed attending a This inbrief is intended to show how accurate. drug rehabilitation clinic. Such an occasion was best to try and avoid a letter before With regard to research being carried out through obviously protected as it was an occasion when action and a claim, when legal advice the use of a cuttings service, or on the internet, she could have expected privacy. is appropriate and what to do when try to ensure that you establish some degree of Responsible journalism is a defence in defamation you get a complaint. corroboration and do not lift a quote without actions but being responsible is not confined to double checking it. just journalists. The internet is now frequently used as a source of Whatever you write think about what you are material and contains a lot of false and misleading saying and how it will be, or could be, interpreted. information e.g. Wikipedia has in the past been This is particularly so when you write an email, use subject to false entries because of the free ability Twitter or go on a blog. Think before you write! to edit information. Never assume that because it has been said Reliance on somebody else’s material is not a somewhere else that it must be correct. defence to any libel action because your use of the other information amounts to repetition. If it is a potential privacy matter, check whether That means all you are doing is republishing the this information is sensitive, in the public domain, libel and the fact that you were not the original or otherwise in breach of the PCC (the Press author is irrelevant. It may serve to mitigate Complaints Commission) Code. damages if your innocence is established but was Where possible keep contemporaneous records of it responsible to republish without checking? all telephone and face-to-face interviews. In defamation justification - what you have You should be careful in actually recording said is true - is a complete defence to any claim conversations made without consent and in defamation but not in privacy. The truth of remember that the speaker does have copyright what is revealed is not the issue but whether it rights. is appropriate in the circumstances and is in the public interest. Qualified privilege is a defence open to publication Checklist in the public interest where there is said to be a Do you want to express an opinion or make an “duty and interest” relationship e.g. publishing allegation? information about giving financial support to terrorists. • What are you saying and is what you are writing the best way of saying it? Fair comment is a defence available when you are ‘expressing’ an opinion e.g. in a restaurant review • Are the facts correct? or about a product. • Are the sources honest and can they be corroborated? inbrief • Have you kept all the relevant documents? • Check whether or not you are insured for • The fact that a complaint is made does not (Pictures, texts, paper work, telephone libel/privacy infringement. You must inform mean that it is justified or that it cannot be recordings.) your insurers immediately if you are. Does defended. the insurance cover the defence of all • Always keep interview notes, tapes, emails, • Contact your defamation/privacy lawyer. An proceedings? Is there an excess? drafts and source materials. (Not just for experienced lawyer will give you immediate your use but because they will be subject to • Create a line of communication and guidance, will doubtless get a “feel” disclosure if the case proceeds.) responsibility within your organisation, and a straightaway and could be far more effective strict procedure to follow. Make sure that the as well as saving you far more money and time • Always check your copy as if you might have left hand knows what the right hand is doing. than your handling the matter yourself. to defend it in court. • Before responding to a complainant, consider Defamation and privacy actions are frequently • Always be careful with reliance on others’ and discuss with colleagues and if in doubt used as a device by those who wish to conceal the material. Remember repetition is republication. take legal advice at the earliest opportunity. truth or to defend inappropriate or unacceptable • Check sensitive data and whether information Too much litigation results from inadequate conduct. Responsible companies and individuals is in the public domain. Remember the terms action being taken at an early stage. It is should have nothing to fear if their article or of the Data Protection Act 1998 which gives generally cheaper to take action sooner rather publication has been carefully researched and wide protection for sensitive data e.g. matters than later. published in a balanced manner. Responsible of medical and sexual information. behaviour is the best defence of all against any • Note and acknowledge the complaint but do libel action. • Ensure allegations made are put to the subject not make any admissions. before publication. Privacy is different because the truth of the • Do not agree to any demands made without publication is not the central issue. Only the public • If expressing an opinion is it an honest opinion first giving full consideration to the facts. interest or freedom of expression can justify its that someone else could hold or are you • Check the offending words about which the breach and the requirements are becoming more making a statement of fact? complaint is made to see if they are factually difficult to satisfy. accurate. Publications at risk Defamation and privacy actions can be like a • Letters • Retain all documentation concerning the game of poker. The stakes can be very high. publication (including drafts). • Articles • Don’t play the game without an expert by your • If a formal complaint is made through side. • Emails – internal or external solicitors, remember that there are “Pre-Action • Always refer to a lawyer experienced in media • Blogs; Bulletin boards; YouTube; Facebook; Protocols” which apply to defamation claims, law if in doubt. Twitter and which set out the procedure that should be followed in relation to a complaint and a • The money spent in the short term will reap • Press statements response to such a complaint. Your lawyer dividends in the long term and save much • Conference calls will be aware of these protocols but try to executive time and effort. familiarise yourself with them. If they are not • TV and radio followed there could be costs implications. • The Internet generally A complaint should set out in detail the objections Authors Comment that have been raised and the remedy that is Changes may come with the new Coalition sought. It should stand on its own and be able Government. If they do there may be changes to Action to be taken as the basis upon which any action the success fee in Conditional Fee Agreements What to do if a complaint is made might be taken. and the recovery of After the Event Insurance as recommended in Jackson Report but, given the • Don’t panic. A lawyer’s letter is intended to To state the obvious, as soon as you get a state of the nation, it will clearly not be a priority. create it but keep calm. complaint you should read it through carefully and draft a response to each and every point to There is a strength of feeling that more needs • Remember time is of the essence. Where the best of your ability, whilst the complaint is to be done to control costs in defamation and the offending material is available online fresh in your mind to assist your lawyers before privacy actions and to stop so called “jurisdiction you should consider removing that material carrying out further investigations. This will be shopping” where foreigners start proceedings in from your website immediately pending privileged on the basis it is done in anticipation of this country for libels published abroad.
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