Media Businesses to Watch the Offence of Offence

A recent case heard in the Supreme Court could have serious consequences for media businesses lacking the right insurance protection to fight libel actions.

The reporting of the divorce case of Bruno Lachaux, a French aerospace engineer, resulted in libel action being brought against various media titles. Those sued for libel included the Independent, the Evening Standard and the Huffington Post, who had all made allegations in print, concerning the engineer’s treatment of his wife and child.

Whilst the Huffington Post paid out what was said to be a “significant” amount in damages and legal costs, settling the action in 2018, the former print title, The Independent, along with the Evening Standard, presented their case to the Supreme Court.

The unanticipated judgement stems from a revision to English and Welsh libel laws, which followed a campaign for change by the Lib Dem party, and which was introduced by the coalition government, to promote freedom of speech. At the time, the UK had become known as the libel capital of the world. Through the revision, the intention was to make it imperative for any libel claimant to prove ‘serious harm’ to their reputation, before an action could be won.

Neither media outlet in the Lachaux case anticipated that the judge would rule that the required ‘serious harm’ threshold had been reached. Both are still arguing that their reporting of the case was in the public interest and may launch a challenge to the ruling on that basis. Other publishers now need to take heed of what has occurred.

The media world may be somewhat shaken by the ruling, but groups who have campaigned for freedom of speech can at least point to the fact that the ‘serious harm’ consideration will become the basis of such judgements. Many libel cases in the future should not now be won by claimants claiming to have had their reputation damaged when, in fact, little reputational damage has occurred.

Where ‘serious harm’ has occurred, however, there will probably be no real defence by publishers, no matter how much clout they believe they have, or how much they claim reporting is in the public interest. If they wish to express opinions or describe people in ways that could affect their standing in society, they must have the appropriate insurance in place, to defend any subsequent legal actions.

‘Publishing’ is a world that has expanded, as social media channels have provided the means through which many entities and individuals can publish their own opinions. All businesses should proceed with caution when expressing a view on competitors or suppliers, as words and opinions could result in legal action. Wisdom probably lies in not commenting on other businesses or individuals at all.

However, for businesses regarding freedom of speech as sacrosanct, not offering an opinion may be at odds with their reporting style. If so, they should make it a priority to speak to an insurance broker about their reporting ethos, and the risks it creates in terms of libel and legal action. An expert broker can provide details of the cover and protection limits required, to avoid any future legal action being a costly one for the bottom-line. To begin this process, please get in touch, remembering that ‘serious harm’ could be down to how the claimant defines that term and whether or not a judge agrees.