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Challenging the media on coverage of a personal nature – Part 1

‘There is an article about me online that I disagree with – what are my options?’

Key points:

There are a number of civil remedies available should you find yourself the subject of unwanted media publications, these are typically:

  • commencing a claim for defamation and/or one of the other relevant tortious causes of action
  • writing to each publisher separately citing your rights as a data subject under GDPR/the Data Protection Act 2018 (“DPA”) and/or submitting requests directly to search engines to ask for the de-listing of relevant web pages
  • complaining about the conduct of regulated publishers to the Independent Press Standards Organisation (“IPSO”).

The applicability of each of the above remedies is circumstance dependent, they are not however mutually exclusive and a combination of them may be required for maximum effect.

Our series of three briefings deals with each of these in turn.

Part 1

Introduction

Finding that you are the subject of a media publication which is critical, makes insinuations about you or reports on matters that you consider private can be a distressing experience for both you and those close to you.

Media outlets and journalists that publish content which includes personal data or which otherwise reports on a person’s private affairs generally seek to rely upon one or more of the following grounds to justify:

  • the information published is in ‘the public interest’
  • their work is covered by freedom of expression
  • the publication is covered by a statutory journalistic exemption.

Cumulatively, these justifications are wide. However, it is not sufficient for a publisher to seek to rely on these grounds as blanket exemptions. Publishers must be able to explain why the infringement of an individual’s rights, freedoms and interests is outweighed by public interest considerations and freedom of expression in each particular instance. Should a publication stray outside the realms of what is permissible there are multiple avenues of redress – these are outlined within this three part briefing series:-

I)   Defamation
II)  Data Protection Rights
III) Complain to the Independent Press Standard Organisation (“IPSO”)

I  Defamation

A civil action for defamation, pursuant to the framework of the Defamation Act 2013, is the primary remedy where a publication adversely affects an individual’s reputation.

Broadly put, to successfully pursue an action for defamation a claimant must be able to establish that a statement has caused or would be likely to cause serious harm to their reputation. Last year in the case of Lachaux1, the Supreme Court clarified that the level of harm caused by a statement should be determined by consideration of facts about its impact, not merely the meaning of the words. However, the ‘serious harm’ threshold remains a high one and it can be difficult to quantify the damage to an individual’s reputation.

Further it is worth noting that there is a strict time limit of one year from the date of publication for issuing defamation claims. Any claim commenced outside this time-frame will be subject to the court’s discretion.

Potential claimants should also bear in mind that, whilst a suitably worded pre-action letter to the relevant publisher threatening a claim for defamation may have the desired effect of securing the removal of the publication, if the matter does become contested and requires the intervention of the court to resolve it, the dispute may become expensive.

It is worth noting that defamation exists alongside a number of other civil causes of action including malicious falsehood, breach of confidence, harassment, and infringement of intellectual property rights – one of these tortious options may be used in conjunction with, or as an alternative to defamation as a course of action.

Conclusion

There are multiple options available for seeking redress against publications that infringe your rights. The optimal outcome in your dispute may be achievable by a combination of the options outlined in this series or a single remedy alone, however each dispute will be unique and may require the correctly timed use of several remedies as part of tactically nuanced approach.

If you or your organisation have found yourself the subject of unwanted media attention and you would like further advice about how to handle publications please contact our media team

1 Case of Lachaux


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.