In two key judgements in the space of just two weeks, the ability of brand owners to retaliate against those who they believe defame them has taken two knocks.
Who: Yousef Jameel, The Wall Street Journal, Helen Steel and David Morris and McDonald's
Where: London and Strasbourg
When: February 2005
It was one step back and one step back for brand owners under attack following two key libel case verdicts in the space of 14 days.
In the first case, the Court of Appeal in London threw out a libel action brought by Saudi Arabian Yousef Jameel against the Wall Street Journal.
The claim was in respect of an article on the Wall Street Journal website. Attracted maybe by the telephone number libel damages awards in the UK, Mr Jameel had issued proceedings against the Wall Street Journal in London, even though it could only be shown that five people in England had accessed the allegedly defamatory item on the WSJ site.
In an earlier case in Australia, a similar level of publication, by way of Australians accessing another website, had been regarded as sufficient to allow the claimant to sue in Australia. In the Jameel/WSJ case, however, the Court rejected the claim. Its verdict was that unless there had been substantial publication in England, then Internet publishers could not be sued in these courts. The appeal judges held it would have been an abuse of process to have continued litigating the matter in the UK and struck the claim out.
McLibel final denoument
In the second case, the European Court of Justice announced its verdict in the long running and infamous "McLibel" case. In this action, a single parent on income support and a part-time barmaid distributed leaflets outside a McDonalds and were met with a libel claim by the fast food retailer. The trial ran for 313 days and ended in a partial victory for McDonalds and a libel damages award in its favour of £60,000, reduced on appeal to £40,000.
The defendants were not entitled to legal aid as this is only granted in libel cases in such highly exceptional circumstances that it has only been granted in one case in the last five years. Steel and Morris took the case to the European Court of Justice on the basis that their European Convention of Human Rights rights to freedom of expression and a fair trial had been violated.
The ECJ agreed with them. What was more, they awarded them damages: £13,750 to Ms Steel and £10,300 to Mr Morris.
"Inequality of arms"
The Strasbourg Court ruled that the "inequality of arms" between the unrepresented two and McDonald's phallanx of lawyers denied them a fair trial and also had a "chilling effect" on their freedom of expression.
The UK government has now pledged to look at the laws of libel generally in the context of this judgment.
Why this matters:
The first case is clearly going to make it more difficult for defamed brand owners to bring libel proceedings in respect of on-line attacks unless they can either show that the publisher is resident in the UK or "substantial" numbers of individuals resident in England have accessed the relevant site. No frills airline Ryanair has recently announced its intention to bring proceedings against an anti Ryanair site and it is to be hoped for its sake that the underlying facts will not fall into the Jameel/Wall Street Journal bind.
As for the McLibel judgement, if as now seems distinctly possible within a year or two, libel/legal aid laws are changed so as to allow the grant of legal aid in substantially more defamation cases, this is clearly going to be a matter of some concern for libelled brand owners.
This will be particularly true if the rule is retained that only in very exceptional cases will legally aided defendants be ordered to pay the claimant's costs, even if the claimant is one hundred per cent successful.
Admittedly it is unlikely that there will be hand-outs of legal aid without Counsel's favourable view of the planned defence's merits, but where this happens, brand owners wishing to take the ultimate step to defend their reputation will face a double whammy of all the costs and time involved in defamation litigation against a defendant who is unlikely to be ordered to pay the brand owner's costs, even if the brand owner succeeds at the end of the day.