2020 Reputation case law developments

We review what 2020 brought in the way of media law developments and what they mean for businesses facing reputation risk.

In addition to the global pandemic and unpredictable politics, 2020 has brought some new developments in reputation law.

Expansion of the public interest

The pandemic has already widened the scope of what is deemed to be in the public interest, providing defendants with reasons to write about issues, companies or individuals that previously might have fallen outside the public interest category – think the extensive reporting on private companies taking government funding by way of the furlough scheme.

Recent case developments have seen the public interest defence to defamation liberalised even further, with the result that a defendant can publish untrue information yet still be able to defend their publication as lawful, as long as they can show they reasonably believed publishing the material was in the public interest. Most importantly, it has been confirmed that the defence is open to all publishers who use social media and other online platforms when publishing content – not just the media.

Rights of victims of crime

It has been established that injunctions anonymising victims of blackmail - both individuals and corporate entities - can be obtained in the civil courts whilst criminality is ongoing, during the course of criminal proceedings and even post-­conviction. This makes anonymity injunctions an invaluable tool in protecting reputation for innocent parties in the criminal justice process, providing precious peace of mind at a time of extreme stress.

Rights of suspects of crime

It has been re-established that an individual who is the subject of an investigation by an organ of the state will have a legal right to privacy in respect of that investigation until the point at which they are charged. This protection, however, does not apply to the general reporting of allegations about the committal of an offence where the fact of the investigation is not referred to. That doesn’t, however, mean the media can have a free shot at the individual in question if they simply don’t refer to the investigation – defamation law still applies, and publishers would be at risk of legal action if they got it wrong, overstated the position or if after an investigation no further action was taken.

The perils of a truth defence in libel trials

The Johnny Depp libel case will have escaped no one’s attention. Whilst the case provided no new law as such, it does serve as a reminder of the considerations a claimant must have when taking a defamation complaint to court – taking a claim to trial when the only possible defence is one of truth is nothing short of a gamble. With disclosure obligations and the media free to report on all allegations made in open court, the media had a field day. Arguably, even if Depp had won the case it could be questioned whether it would have been a Pyrrhic victory considering the level of media attention it generated and the attention drawn to the parties’ personal lives.