Defamation/reputation Management : An Introduction
Contributed by PSB Law LLP
This has been a year of two halves. Following the public outcry over the Trafigura super-injunction at the end of 2010, the fierce attack on such injunctions continued into the Spring of 2011 reaching a climax in May 2011 when Ryan Giggs, the beneficiary of an injunction, was named by a Scottish newspaper, an MP under parliamentary privilege and in the Twitter-sphere. The effect was entirely the reverse of the original objective and resulted in maximum exposure. It led Prime Minister David Cameron to say that the current law on privacy was “unsustainable,” echoing the view of the press that judges granting privacy injunctions were out of touch and out of control. Whilst injunctive relief for threatened privacy intrusion would remain, lawyers and commentators alike wondered whether that relief could ever be effective in a climate where it was fast becoming impassioned journalistic or political principle - or mere popular sport on the internet - to reveal the identity of those with such protection. Added to this, in May 2011, Strasbourg gave a ringing endorsement to the balance stuck in English privacy law as Max Mosley lost his legal challenge in the European Court of Human Rights. He failed to compel newspapers to contact individuals before publishing private information so that they could stop the story by applying to court for an injunction.
Echoing the public views of defamation and privacy, the court followed a general trend of eroding a right to reputation at the end of 2010 and beginning of 2011. First, a series of cases following on from Thornton v Telegraph Media Group Ltd firmly established that there is a threshold of seriousness that must be reached before a claimant can sue in defamation; the court refusing to give airtime to defamatory allegations which it considers to be trivial.
Second, the defence previously known as “fair comment” was toughened up. Following the British Chiropractic Association v Singh decision in December 2010, the Supreme Court recognised in Joseph v Spiller that the nomenclature “fair comment” was misleading as the defendant needs to be honest, not fair, and so renamed the defence “honest comment”. In addition, the court liberalised the defence, removing the requirement that the reader of the statement ought to be able to judge for himself how far the comment was well founded.
The press won a short-lived victory at first instance in Flood v Times Newspapers by relying on a “Reynolds Defence” of responsible journalism. This concerned an investigation by journalists into allegations of corruption against the claimant policeman which resulted in a police inquiry. Several months after the article in question was published, the police investigation concluded, and no evidence was found against the officer. Tugendhat J found that the hard copy article was covered by Reynolds privilege, as was the online version, but that it should have been removed from the paper’s website or amended when the newspaper became aware of the outcome of the police investigation. The Court of Appeal disagreed and found for the claimant.
The other case of significance in this period which was not a welcome decision for defendants, although unlikely to affect the mainstream press, was Clift v Slough Borough Council in which the Court of Appeal decided that a public authority had a duty to respect the claimant’s Article 8 rights and therefore publication of defamatory allegations needs to be proportionate if it is to be protected by qualified privilege.
In other areas the press gained ground at the end of 2010, and the beginning of 2011. In January 2011 the European Court of Human Rights held that the award to Naomi Campbell of her success fee on a ‘conditional fee’ basis constituted a disproportionate interference with the newspaper’s right to freedom of expression under Article 10 (MGN Ltd v UK). This followed Lord Justice Jackson’s report on costs a year previously recommending that neither success fees nor insurance premiums should be recoverable against an opponent. These recommendations are likely to be adopted by the government.
On 15 March 2011, a draft Defamation Bill was published by the government, with the Joint Defamation Bill Committee due to report by the end of October 2011, following which a Defamation Act will no doubt make it onto the statute books. The draft Bill is on the face of it largely a codification of the common law but, importantly for the press, is likely to make the 'Reynolds Defence' easier to establish and it will abolish the single publication rule.
At the beginning of 2011 it seemed as if the Defamation Bill together with costs reforms, were likely to be the most significant events in defamation and privacy law; but these have been eclipsed by battles over privacy and press accountability. The tide turned dramatically in the summer of 2011 as the full extent of the on-going phone hacking scandal started to emerge forcing the closure of the News of the World, the very paper which Giggs had enjoined at the beginning of the year. There was a backlash against the press and sympathy for those whose privacy had been invaded. To add to this, on 20 May 2011, a committee set up by Lord Neuberger in the wake of the Trafigura and John Terry injunctions, published its report on super-injunctions and anonymity orders and found that in fact, despite press outcry, only two super-injunctions had been granted since January 2010. Having called privacy laws “unsustainable” at the beginning of 2011, six months later the Prime Minister was calling for a judge-led enquiry, and advocating self-regulation so that “the public will know that newspapers will never again be solely responsible for policing themselves.”
Whilst the balance between all of these issues has yet to be determined, what is clear is that the bigger issues of press accountability, privacy and libel reform are being fought in the public arena with the courts taking a back seat. The first test cases in the phone hacking scandal go to trial in January 2012 and this will set the agenda for those claimants following. The result of the public inquiry, headed by Lord Justice Leveson, is promised by the end of 2012. At the time of writing, the feeling is that we have only seen the tip of the iceberg and that the hacking saga is likely to set the scene in this area of law for 2012.
Carter-Ruck houses a "first-class" team that is incredibly well regarded for its claimant work, as well as a strong and ever-growing presence in corporate reputation management. It acts for a diverse mix of high-profile and high net worth individuals, with key clients including Sir Elton John, Yusuf Islam, the Prime Minister of Qatar, Tesco, WPP, Tommy Hilfiger and Trafigura. According to impressed market sources: "It does the most immaculate work, it is solidly professional and it makes sure that it chases up any and every loose end."
Client Service "It doesn't string people along and it only fights the cases it thinks it can win."
KEY INDIVIDUALS Andrew Stephenson is "an excellent lawyer and litigator," who is praised for his client management skills. He secured a settlement on behalf of Professor Henrik Thomsen in his long-running libel case brought by GE Healthcare. Alasdair Pepper "really rolls up his sleeves and gets stuck in" and recently represented Prince Radu of Romania in a libel claim against Royalty Monthly magazine. Nigel Tait "is absolutely brilliant" and "first rate, with extremely good judgement." He achieved an apology for Simon Cowell from Heat magazine, and is defending journalist Hardeep Singh in an appeal brought by His Holiness Baba Jeet Singh Ji Maharaj. Admiring sources agree that "when things get hairy, you never detect any signs of weakness; he drives a case forward until the other side flinches." Magnus Boyd "is fantastic and you can get hold of him anywhere, which is always such a relief." Clients go on to further praise his diligent and effective approach. He is acting for former defence secretary Bob Ainsworth MP in libel proceedings against the Daily Mail. Interviewees recognise Adam Tudor as "extremely good" and alongside Isabel Hudson he continues to provide advice to Kate and Gerry McCann. Tudor and Hudson were both also involved in securing apologies from a number of major newspapers on behalf of Trafigura. Ruth Collard represented Professor John Moore with regards to comments made in the Spectator. Cameron Doley is representing the Prime Minister of Turkey, who is suing the Daily Telegraph over allegations of political donations made by the State of Iran. Claire Gill "is pleasant, professional and quick to understand a matter." Her workload has included assisting the former chairman of the Indian Premier League in libel proceedings against the chairman of the English Cricket Board, and securing substantial damages for Boris Berezovsky in a libel action. Lucy Middleton "is very much coming up and will be a major player in due course."
This is a very highly regarded defendant practice, providing pre and post-publication advice to national newspapers and publishing houses, as well as advising on issues of data protection and privacy. The team is regularly retained by major clients such as Mirror Group Newspapers (MGN), Private Eye, Express Newspapers, Macmillan and Random House. Market sources watch with interest to see how the departure of Philip Conway will affect the otherwise thriving team.
Client Service "It knows when it is dealing with experienced people in-house and it doesn't unnecessarily waste time and money by going into great detail in briefings."
Commercial Awareness "The whole team understands the practical side of what it does and is always conscious of the commercial ramifications of its advice."
KEY INDIVIDUALS Kevin Bays "is an excellent tactician who is always proportional in his response." He advises a number of international publishing houses, representing MGN in libel proceedings arising out of the 'Baby P' case, and acting for the Mirror in the long-running MGN v United Kingdom action. Robin Shaw is highlighted as "an experienced operator" who provides major clients such as Penguin with pre-publication advice, as well as undertaking libel work for MGN and handling the majority of Private Eye's defamation issues.
This group is widely known for its expert representation of media and publishing houses in defamation and privacy matters. Market sources describe it as "a rock-solid team" that "is hugely admired." Big-ticket clients include News Group Newspapers, Bauer Consumer Media and the Lawn Tennis Association. The firm is also home to a growing claimant practice, advising high net worth individuals and corporations on reputation management. Major recent work includes representing the News of the World in the phone hacking cases.
Client Service "The whole team is great with clients and is a pleasure to work with."
Commercial Awareness "It understands the commercial aspects of the matters that it handles and the broader concerns that the client has."
KEY INDIVIDUALS Julian Pike "is quite outstanding; he is clever, thoughtful, charming and great with clients." His clients of note include Haymarket Media Group, Emap and Bauer. Patrick Callaghan "is calm amidst the storm, and can remain level and ordered under the most pressured circumstances, which makes a huge difference to the clients." He acted alongside Beabey in JIH v News Group Newspapers and advises a number of regional and national publications. Senior statesman Richard Shillito enjoys a position of considerable prominence as a "superb" lawyer with a wealth of industry experience.
Market sources view Olswang as a leading player in defamation and reputation management, handling both defendant and claimant work for a variety of media organisations, corporations and private individuals. Interviewees are effusive in their praise, describing it as "a top-class outfit with a genuine mixed practice. It is at the top of its game."
Client Service "I just think it is brilliant; the service it provides is second to none."
KEY INDIVIDUALS Market sources agree that Geraldine Proudler is "a leading light" and "doyenne" of the industry, who is an "absolutely top notch" practitioner and "definitely a star." Dan Tench is "a very knowledgeable" lawyer who handles a broad range of defamation and reputation management matters, with a particular emphasis on internet disputes. Senior associate and solicitor advocate Ashley Hurst specialises in online reputation management on behalf of corporations. One appreciative client highlights his drafting skills as especially impressive, stating that "he was single-handedly responsible for an award we won in a particular matter."
Sources note this is a very strong defendant practice. It advises newspapers, publishing houses, search companies and broadcasters, with high-profile clients including Associated Newspapers, Bloomsbury Publishing, the Financial Times, Google UK, Independent News & Media, Telegraph Media Group, Times Newspapers, Thomson Reuters, Trinity Mirror and the Spectator. Market sources agree that it "hits the bell of perfection as far as defendant media law is concerned."
Client Service "It takes a very client-friendly approach to everything it does."
Commercial Awareness "It has a characteristically commercial approach to its work and is very good at suggesting solutions, so you always have a range of options."
KEY INDIVIDUALS Keith Mathieson offers "extremely good judgement, a very sound commercial approach to cases, and a great understanding of the client's broader objectives." He recently represented Associated Newspapers in an action brought by Nicola Horlick, and defended MGN against a libel claim by Rio Ferdinand. Jaron Lewis acted for Times Newspapers, Guardian News and Media and Associated Newspapers as interveners in the Supreme Court case of Spiller v Joseph. Interviewees "find him impressive - he is resolute and very capable." David Hooper "is excellent at what he does," advising a wide variety of US-based publishers, including Condé Nast, Forbes and Newsweek. Senior associate Brid Jordan "is excellent at giving practical advice and very willing to come out and talk to people," whilst associate Lindsay Hodgkinson is "practical, user-friendly and won't talk in legalese."
This team maintains its indisputable presence at the top of the claimant market, as well as continuing to increase its work advising high net worth individuals and corporations, such as Stelios Haji-Ioannou, Wayne Rooney and Archelor Mittal.
Client Service "It is always on hand to answer questions, and is extremely responsive."
Commercial Awareness "It takes a good common-sense approach to litigation that recognises the risks involved."
KEY INDIVIDUALS Keith Schilling is held in considerable esteem as "beyond compare" and "very responsive, knowledgeable and assertive." He recently acted for footballer Cristiano Ronaldo in a libel action against the Daily Telegraph, as well as representing Brad Pitt and Angelina Jolie in a privacy claim against News Group Newspapers. Gideon Benaim "is extremely open and generous in his approach and a bit of a whizz-kid with technology." He acts for a number of multinational corporations and high net worth individuals in privacy and defamation actions. John Kelly "is a very good litigator" who represented comedian Matt Lucas against MGN and Northern & Shell. Rachel Atkins is "very impressive, commercial and easy to deal with." She counts numerous celebrities amongst her client roster, including Take That member Howard Donald, whom she has represented in privacy actions. Rod Christie-Miller "has great strategic vision" and handles reputation management for a number of corporate clients. Jenny Afia "is a fantastic client lawyer," who regularly assists Christie-Miller in media and corporate reputation management matters. Afia handles defamation actions for Lara Stone and David Walliams. Fellow associate Chris Scott works with Atkins and "is superb; he's a brilliant technical lawyer. I was extremely impressed by how good he is."
This "very effective team" has an impressive claimant practice, acting for celebrities and high net worth individuals in privacy, libel and data protection-related matters. Highlights include representing Lord Ashcroft against the BBC, and it has also acted for David and Victoria Beckham, Kate Moss, Claudia Schiffer and the Catholic Church of England and Wales.
KEY INDIVIDUALS Gerrard Tyrrell "is sensible, solid and as good a defamation lawyer as you can find." He has handled defamation and privacy work for the royal family and Kate Middleton, as well as securing an apology from Ijaz Butt and the Pakistan Cricket Board on behalf of the England Cricket Team. Senior associate Jo Sanders is "an extremely effective lawyer and a very good technician." She has advised billionaire Maan Al-Sanea on a number of defamation and privacy claims, as well as representing Sophie Dahl and Jamie Cullum in actions against the Daily Mail, Mail on Sunday and Sunday Express.
This group represents both defendants and claimants, and clients are quick to praise the quality of its work, with one stating that "I was very impressed with the way that it handled my issue." On the defendant side, it provides pre-publication libel advice to clients such as Random House and Orion publishing, and has recently defended the Sunday Times against a claim. In terms of claimant work, it represented Rio Ferdinand in a privacy action against MGN. It has also acted for three ex-Guantanamo Bay prisoners against a think-tank.
Commercial Awareness "It really understands the work we do, and the journalism and television industries."
KEY INDIVIDUALS Team leader Louis Charalambous is "an absolutely fantastic" lawyer with an "overwhelming grasp of defamation law." Peers praise Razi Mireskandari as "a practitioner who must be highly regarded for his ability to cut to the heart of a matter in an area which can become obfuscated with technicality." Martin Soames "is a delight to work with and very responsive," whilst market sources view Stephen Shotnes as "a great lawyer."
This practice focuses on defendant work for large media organisations and publishers, as well as advising on issues arising from online publications and user-generated content. Clients include American Media, IHS/Jane's, Macmillan Publishers, the Press Association, The Motley Fool and Thomson Reuters.
Commercial Awareness "It really knows our business and our needs as a business."
KEY INDIVIDUALS Niri Shanmuganathan is "a brilliant communicator with outstanding investigation skills. Nothing is too much trouble, and he produces results." He recently acted for the Evening Standard in a libel claim brought by Jacqueline Lait, the former Conservative Party MP for Beckenham. Senior associate Timothy Pinto "is very conscientious, responsive, and always on the ball." He recently advised Associated Newspapers on the Daily Mail website's commenting system.
This team primarily acts for corporate clients, including Barclays Bank, British Airways, the Co-operative Group, GlaxoSmithKline, Primark Stores and Sainsbury's Bank. It recently represented the Pakistan Cricket Board in relation to spot-fixing allegations, and defended British Airways against a libel claim by one of its flight attendants.
Commercial Awareness "It has the ability to corral advice across different disciplines, and to provide holistic representation."
KEY INDIVIDUALS Team head David Engel "is a joy to work with; he is amazingly calm and sensible and terrifyingly clever." He regularly advises clients on online reputation management. Managing associate Korieh Duodu is "very good with clients, charming and able," and has acted for high-profile individuals such as Lord Foster, David Walliams, Matt Lucas and Stan Collymore.
This group handles defamation and privacy work for a variety of broadcasters, sporting organisations and celebrities. Current clients include the FA, ITV, the Welsh Rugby Union, Channel 4 and a number of online publications.
Client Service "It is very easy to get hold of, willing to spend a lot of time looking at things, and always describes issues in ways that I understand."
KEY INDIVIDUALS Sources agree that Duncan Lamont "is fabulous - I could not speak more highly of him." In addition, he "is so responsive; weekends, evenings, he's always available." He has recently obtained an injunction on behalf of a major sports star and represented Popbitch in a number of privacy injunctions. Nicholas Armstrong "is very effective, helpful and approachable." He has been acting for Warren Gatland and the Welsh Rugby Union with regard to allegations in The Times, and advising Susan Boyle's manager on libel proceedings against the Daily Mail. James Quartermaine "knows his stuff and is very enthusiastic, and the advice he gives is spot-on." He has assisted Lamont and Armstrong in a number of privacy and defamation actions.
Sources recognise this as "the new kid on the block in terms of claimant work." In line with its rising profile, it has been involved in numerous precedent-setting defamation cases of late. Its client base covers a broad range of media figures, politicians, corporations and high net worth individuals.
Client Service "I find it pushes the envelope in terms of educating its clients and maintains continual contact rather than waiting for the client to call."
KEY INDIVIDUALS Interviewees agree that Rhory Robertson is "a very good lawyer with a wealth of experience." He recently defended the think-tank in North London Central Mosque v Policy Exchange, and has been instructed by a New Zealand cricketer in his claim against Lalit Modhi. Dominic Crossley "has a very relaxed but reassuring way with clients; he is very confident and professional." He acted for John Prescott in relation to the phone hacking scandal, and represented Max Mosley in his extremely high-profile claim. Steven Heffer "is a creative and resourceful litigator who has an acute ability to pick out the core of a situation and a talent for mapping a path through the complexity." He advised Katie Price on her autobiography and has handled boxing promoter Frank Warren's claims against a number of tabloid newspapers. Kate Macmillan "gives very clear advice and is always very calm. She has an understated manner and is a really safe pair of hands." She specialises in reputation management advice.
Philip Conway of Conway & Conway, late of Davenport Lyons, is
"experienced, commercial and knows how to deal with something quickly before it gets out of hand." His client base covers an array of
newspapers and publishers.
Christopher Hutchings recently joined Hamlins LLP from M Law and is
"very good with clients, and an out-and-out libel lawyer." Of late, he has provided counsel to Hello! magazine, ITP Publishing and Audley Harrison.
Sarah Webb is a new arrival at Payne Hicks Beach from Russell Jones & Walker and is well regarded for her private client work.
Mark Bateman of Archerfield Partners LLP's impressive client roster includes Katie Price, Courtney Love Cobain, Russell Brand, Lionsgate (UK) and Macmillan Books.
Monica Bhogal of Berrymans Lace Mawer
"is absolutely brilliant," whilst colleague
Timothy Smith "is extremely knowledgeable and really technically adept." Both Bhogal and Smith advise corporate clients, police forces, professional organisations and a variety of publications. Solicitor advocate
Andrew Hearn of Dechert LLP acts for a wide variety of high-profile publishers, including the Sunday Telegraph, Haymarket Media and the New Statesman.
Phil Sherrell has newly joined Bird & Bird from Eversheds. Interviewees highlight him as
"an excellent lawyer who is very measured, calm and experienced." One client identifies
Gerard Cukier of Kingsley Napley LLP as a
"top-notch common-sense libel lawyer." His clients include Associated Newspapers and numerous celebrities.
Mark Lewis of Taylor Hampton Solicitors is increasingly visible in the privacy market due to his role in the phone hacking cases against the News of the World.
Tom Iverson has joined Michael Simkins LLP from Eversheds. He is identified as
"a very professional and personable" practitioner who is a name to watch for the future.
Marcus Rutherford arrives at Enyo Law LLP from Reed Smith, where he was seen as
"very much a senior figure." He has been advising a major international non-profit organisation.
Mark Manley recently left Brabners Chaffe Street to set up his own firm, Manleys. According to clients he is
"tremendous. He has a real zest for a case, is strong, committed, extremely focused and gets quickly to the point." He handles defamation and privacy cases, and provides pre-publication advice to a number of broadcasters and publishers.