In his article on this blog, Jason Nisse mourns – or at least opines on – the death of the writ in libel actions. Judith Townend questions in her article for Inforrm whether the statistics, at least of late, tell a different story, but concedes that data protection and privacy applications are certainly the new trend in terms of legal remedy for ills documented online.
There is another reason libel practitioners are hastily amending their business cards to include “privacy” and other such tangential practice areas – namely that s1 of the Defamation Act 2013 (and possibly confusion or a lack of precedent in terms of its application in common law) has provided defence lawyers with a very effective bat with which to hit a letter before action into the distance. The requirement for claimants to prove Serious Harm is not being argued and defended in court but rather being used as a firm rebuttal of the letter before action: no serious harm was caused, therefore there is no case to answer. Though the quantification in anything other than fiscal terms of Serious Harm is something yet fully to be addressed by the courts, the provision of data in terms of the impact of damaging commentary is increasingly instructive to both sides in any prospective libel suit (as well as in privacy, harassment and a host of other areas).
Digitalis, of which I am CEO, created the Serious Harm Report to fill that void, providing quantitative data (on an article or comment’s exposure, audience, republication locally and internationally) and qualitative review (how, for example, user generated commentary suggests something was interpreted). The content of such a report can of course form part of expert witness evidence on reputational damage and its findings can be repeated periodically to quantify impact over time.
Interestingly, the client who anticipates attack or who catches damaging content sufficiently quickly has the most to gain in terms of measuring the impact of potentially defamatory content relative to a measured starting point – and from time-to-time thereafter against that status quo.
The question as to whether, and to what extent, such information is admissible in support of a claim that serious harm has been caused is a matter which will be explored in court in the coming months. Nevertheless, such a report provides real, reliable data, which can provide objective evidence as to the impact of a particular publication, and which can inform the view of clients and their advisers in assessing potential claims.
Time will tell whether such online data trawling and analysis will become a de facto requirement in relation to libel cases, or whether the latter’s demise means we should rename the product given its clear application for lawyers with new titles on their business cards.
Dave King is CEO of Digitalis Reputation, the online reputation and intelligence specialist.