New procedural rules will apply to English High Court media and communications claims from 1 October 2019. These are set-out in a statutory instrument that was laid before Parliament just before the court term finished last month. They amend the existing Civil Procedure Rules 1998 (“CPR”), and in effect create a new media and communications litigation regime. Their impact is likely to be more radical than first appearances may suggest.

 

Specific rules for M&C cases

From 1 October 2019 a High Court claim must be issued in the Media and Communications List (“M&C List”) if it is or includes a claim for defamation, or misuse of private information, or data protection law, or harassment by publication. Also, various claims not falling into one of the above categories may be issued in the M&C List if the claim arises from, (a) the publication or threatened publication of information via the media, online or in speech, or, (b) other activities of the media, and the claimant considers it is suitable for resolution in that list.

 

Designated specialist list of the High Court

In 2017 the judge in charge of the Queen’s Bench Division’s (“QBD”) Civil List (Mr Justice Foskett) invited a single High Court judge (Mr Justice Warby) to take primary responsibility for cases involving one or more of the main media torts. These were described as defamation, misuse of private information, breach of duty under the Data Protection Act, and related or similar claims, including malicious falsehood and harassment arising from publication or threatened publication by the print or broadcast media, online, on social media, or in speech. As a consequence, a new High Court list was created in 2017 called the Media and Communications List.

The judge in charge of this list was also responsible for considering emerging procedural issues affecting these types of cases, as well as establishing generally whether there were any improved practical arrangements that might be made for cases of the kind specified.

The statutory instrument of July 2019 crystallises the M&C List as a designated specialist list of the High Court that is going to be imposed by the CPR from 1 October 2019.

 

New procedural changes

A new Pre-Action Protocol for Media and Communication Claims is also replacing the Pre-Action Protocol for Defamation Cases as part of the new procedural regime in the High Court.

This M&C protocol applies to a far wider sweep of cases than the Defamation Protocol, which, as its name suggests, only related to defamation claims. The new protocol applies to all cases involving claims in defamation, misuse of private information, data protection law, or harassment by publication, as well as 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. The M&C protocol sets out what details should be included in letters of claim for the various specific M&C causes of action.

As part of the new regime in the High Court for M&C cases, significant amendments are also being made to Practice Direction 40F, which relates to the monitoring of injunctions prohibiting publication of private or confidential information.

 

Importance of changes

These developments may be procedural and organisational matters for the High Court, but they are also more than that. They are an indication about how the shape and nature of litigation has changed over the last few years, so that what at one time would have been a fairly disparate and loose grouping of legal causes of action are now being labelled as a distinct set of related laws under the M&C umbrella.

The changes illustrate how M&C claims have converged in the digital and data age. Previously, and not so long ago, when someone thought of defamation or malicious falsehood or privacy what sprang to mind was an offensive or deliberately untrue or intrusive item in a newspaper, or on television, or on the radio.

When contemplating a harassment case, people imagined physical stalking, or possibly journalists aggressively “door-stepping” an individual. Data claims conjured images of politicians and civil servants leaving confidential documents on trains, disgruntled employees unlawfully taking sensitive client lists, and documents such as medical notes not being kept secure.

Now a large proportion of all of these causes of action arise in the High Court because of issues with electronic and online content published by a range of potential defendants, including in the mainstream media, on social media, on blogs, on corporate websites, and in electronic communications.

It is also telling that whereas High Court privacy and data protection claims have been issued for years in both the Chancery Division and the QBD, from 1 October 2019 it will only be possible to issue such claims in the QBD, and solely in the M&C List. All privacy and data claims are now squarely in the M&C camp, as far as English High Court procedures are concerned. This includes representative compensation claims under Articles 80 and 82 of the General Data Protection Regulation, which look set to be a major growth area for UK litigators.

This is a significant development if you consider that only last year Chief Master Marsh in the case of Mezvinsky & Ors v Associated Newspapers Limited [2018] EWHC 1261 (Ch) allowed the grandchildren of former US President Bill Clinton to pursue claims for misuse of private information and for breach of data protection against Associated Newspapers in the Business List of the Business and Property Courts of the Chancery Division.

In the Mezvinsky case, the defendant applied for the matter to be transferred to the fledgling M&C List on the basis that the claim should not be within the scope of the Business List, because of its nature. Associated Newspapers Limited is the publisher of the MailOnline, and the claim concerned a series of articles published on the website between 12 April 2017 and 1 November 2017. The articles included photographs of the claimants in which their faces or features were visible because they had not been pixelated.

Despite the media context of the case, Chief Master Marsh dismissed the application and reasoned that “unless the CPR expressly provides that an area of business is a specialist list… the notion has no application”. He said that the M&C List was not a specialist list, “it was not created by a provision in the CPR, or in statute… ”, and that, “… the M&CL has no direct extra-divisional effect”. That was the position in 2018, and thereafter. From 1 October 2019 this will change entirely.

The new regime will also need to deal with the recent surge in court issued defamation claims, which increased by 70% last year alone. In 2018 libel and slander cases made up six percent of all QBD claims.

It should be remembered that the QBD is a fairly generalist High Court Division that also deals with claims relating to issues such as debt disputes, personal injury, negligence, breaches of contract, breaches of statutory duties, breaches of the Human Rights Act 1998, and various torts. For six percent of all QBD claims to be defamation disputes shows how media and communications cases have been on the rise, possibly because of the streamlining of proceedings resulting from the Defamation Act 2013, the “proto”-M&C List that was put in place in 2017, and the massive expansion over the last ten years or so of online content and digital communications.

Information remains available permanently online or is stored in readily accessible electronic databases that not so long ago would have been published once and physically archived in paper format, such as in news articles, or destroyed, such as hard copy communications. What is more, electronic information is constantly expanding by feeding and building on itself – think of comments on electronic news items, social media, and blogs, as well as databases of information and metadata that are being sifted, processed, and exchanged by corporates.

Even though defamation cases are now six percent of all QBD claims, they are only one cause of action among a much wider grouping of potential claims that will now be dealt with exclusively by the M&C List. It would be interesting to assess towards the end of 2020 what percentage of QBD claims will be comprised of the whole gamut of M&C List legal causes of action.

That is currently uncertain, but what is clear is that the new regime in the High Court for media and communications cases is forward thinking and of significant practical value in the digital and data age. It is more important than the procedural tweak it may seem to be on first blush.

 


 

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