Media and Communications Claims - essential conduct before starting a claim

Following a consultation in 2019 on the Pre-action Protocol for Media and Communications Claims the Protocol was updated to adapt the law to be more in line with advances in telecommunications technology.  The Protocol now encompasses all cases involving defamation, misuse of private information, data protection law or harassment by publication, and claims in breach of confidence and malicious falsehood which arise from publication or threatened publication by the print or broadcast media, online, on social media or in speech. This update was meant to bring the Civil Procedure Rules (CPR) into the modern age of high-speed online communication.  In a world where a statement can be heard all across the world in a matter of minutes, this update is long overdue.      

Proportionality, as with many types of claims, is a key point in this protocol. It stresses the importance of not acting irresponsibly and incurring unreasonable costs.

Giambrone & Partners commercial lawyers commented “initially, as with most types of claims, a Letter of Claim is sent to the defendant. Due to the limitation period of one year for defamation and malicious falsehood claims, time is of the essence if you wish to pursue a claim under these circumstances. The Letter should contain all relevant details including the names of the parties, the remedies sought and the basis of the claim and also details of any funding arrangement if applicable.”  they further remarked, “given the often global nature of claims relating to areas of media and communications, you should also include all facts or matters relevant to jurisdiction in which the breach occurred.”

 Additionally, if your claim is for defamation and/or malicious falsehood, you should include the following information:

• The publication in which the offending statement appears;
• A transcript of the statement, or for the case of slander, the circumstances in which the statement was spoken;
• An outline of what the statement accuses the claimant of;
• Why the statement was inaccurate or insupportable;
• With regard to defamation, why the statement is likely to cause harm;
• The value of the financial loss suffered;
• For cases of slander or malicious falsehood, how and why the statement caused special damage or pecuniary loss, alternatively, why the statement is actionable without proof of actual loss;
• For the case of malicious falsehood, an outline of the claimant’s case in regards to malice;
• How the claimant would be identified by the statement.

For cases of Privacy, and breach of confidence, your Letter should include:

• The information that constitutes the confidential information;
• The publication containing the information;
• For breach of confidence claims, the circumstances giving rise to confidentiality;
• For private information claims, the circumstances giving rise to a reasonable expectation of privacy
• Details of any damage or distress suffered or anticipated as a result of the breach of confidence or misuse of private information
• For private information cases, why the claimant’s right to privacy outweighs the defendant’s freedom of expression in that instance
• Whether the claimant wishes to bring his claim anonymously

For cases of data protection, your Letter of Claim should include:

• Any information necessary to identify the data subject in question;
• The data controller to whom the claim is addressed;
• The information that constitutes personal data;
• Sufficient details to identify the relevant processing;
• The duty that was breached;
• The personal data which should have been differently processed;
• The nature and details of the damage caused or likely to be caused; and
• If the claim is brought on behalf of data subjects, the entity which intends to bring the claim.

As can be clearly seen, the information needed in the Letter of Claim for Media and Communications Claims is varied and complicated. Due to this, and because of the potential time constraints, Giambrone & Partners experienced lawyers in the litigation and disputes team suggest that expert legal advice should be sought to ensure all relevant documentation is in order. The defendant must provide a reply to the Letter of Claim, as soon as possible, and should specify the date on which he intends to respond if he is unable to respond within 14 days. The response should contain the following:

• Whether the claimant’s claim is accepted, in part or in full, and in such a case the remedies the defendant is willing to offer;
• If the defendant requires more information, the information sought;
• If the defendant rejects the claim, the reasons thereof; and
• If the claimant intends to bring the claim anonymously, whether the defendant accepts.

Once the Defendant responds, both parties should attempt to resolve the dispute in the most efficient manner. As with most other types of claim, the protocol encourages both parties to seek resolution using alternate dispute resolution (“ADR”) methods such as mediation and/or arbitration. The court expects the parties to at least attempt ADR before proceeding to court and a refusal by one party will be held against that party - as a result, the court may order that party to pay costs. It is in the parties’ best interests to resolve their differences outside of court as it is usually less costly and less risky and without such a high profile as a court case.

If ADR fails, both parties should review their documents and evidence, and consult with their legal team to consider their position in order to decide whether to proceed to court or not.  

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