ENGLAND & WALES Trends and Developments Contributed by: James Lynch, Sophie Green and Nick Connor, Maltin PR
ther documents being available will provide a trove of additional information. Where court documents have long served as a cornerstone of investigative report- ing, the increased availability of documents going for- ward should be flagged up to clients when proceed- ings are ongoing as a potential risk. For both claimants and defendants, the new prac- tice direction is likely to impact on considerations as to wider case strategy. For claimants, the additional availability of materials and transparency that this pro- vides to the media may result in additional coverage that could push defendants towards settlement. For defendants, the potential risks of proceeding with a case in which sensitive materials are likely to be ref- erenced and made public as the case progresses are clear. For both, litigation communications support will become increasingly important to ensure that areas of potential risk and opportunity are effectively advised Parties with a public profile will often find that their litigation cases receive unwanted attention from the media – a side-effect of litigating in England and Wales. Historically, litigants would often seek to bring defamation proceedings against those publishing harmful material, or seek injunctions to prevent pub- lication. As principles of open justice have become better established in the commercial courts, however, these traditional approaches can often exacerbate the problem. A recent example is the recently concluded litigation between Noel Clarke and Guardian News and Media Limited over allegations published by the Guardian in a number of articles in 2021 and 2022. After a lengthy trial, Mrs Justice Steyn found against Mr Clarke, find- ing that the Guardian’s defences of both truth and public interest had succeeded. Following the judg- ment, the Guardian published eight online articles about the judgment, highlighting both its victory and the allegations against Clarke – now supported by a High Court judgment. Bringing litigation against a news publication is incredibly high risk and effectively a last resort for those whose reputations have been put through the “news mill”. on to secure the optimal result. Dealing With Adverse Coverage
This is illustrated by the number of defamation claims issued, which has been declining steadily over the last five years: in 2024 there were 101 new defama- tion claims issued in the Media & Communications List, compared to 111 in 2023, 130 in 2022, 168 in 2021 and 147 in 2020. These figures represent a very substantial reduction from 2019’s high of 323 issued claims. This downward trend has been echoed in privacy claims, which have also dwindled over a similar time- frame. However, it is likely that this decline will be reversed, due to a variety of societal and technologi- cal factors. On a macro level, we live in a world where freedom of expression is more easily enabled than ever via a plethora of platforms that are harder to control, and combatting this with defamation claims seems implausible. Falling into the latter category of technology, sophisticated AI software can now readily generate increasingly realistic false content, misinfor- mation and disinformation, and the publication of this content is becoming widespread. Pursuing a defama- tion claim in the context of AI poses multiple technical and jurisdictional challenges, including, for example, which party should be sued (the social media plat- form, the individual user, the AI company itself, etc). By contrast, targeting social media companies with privacy claims may prove to be more fruitful. Priva- cy cases, unlike defamation, are not subject to the strict one-year limitation period, and instead can fall within a more generous six-year timeframe, as a tort. In addition, there is no requirement to show serious harm, often making it a more straightforward course of action. There is a two-stage test that is easier to satisfy: the first is that the claimant had a reasonable expectation of privacy, and the second is balancing the claimant’s Article 8 right to privacy against the defendant’s Article 10 right to freedom of expression under the ECHR. Another route increasingly deployed to protect rep- utations is data protection claims. Some claim that they are “disguised” defamation claims, but recent judgments have suggested that this approach is not necessarily problematic.
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