All change for reputation and information claims from 1 October
Tomorrow 1 October, changes to the Civil Procedure Rules come into force which will bring claims in defamation, privacy, confidentiality, 'harassment by publication' and data protection together under the banner of 'media and communications claims'.
The Media and Communications List was introduced in 2017 and since then has handled some (but not all) defamation, privacy and data protection claims. The changes codify and expand the scope of the M&C List. The current Pre-Action Protocol for Defamation is replaced by a new Pre-Action Protocol for Media and Communications Claims (see below).
These changes reflect the increasing convergence of reputation and information law. In a data driven world, the value of information has increased, as has the ease of its dissemination. At the same time, strengthened data protection laws (particularly the GDPR) are empowering individuals to assert their rights over their personal data. The new rules will ensure that claims in these complex and novel areas of law are dealt with by specialist media and information judges.
As from 1 October 2019, High Court claims which include a claim in defamation, misuse of private information, data protection law or harassment by publication must be issued in the M&C List. Other claims which arise from publication or threatened publication of information via the media, online or in speech, or from "other activities of the media", may be issued in the M&C List.
The new Practice Direction 53A contains provisions for the transfer into and out of the M&C List, and provides flexibility to ensure that claims with a media element which would clearly be more appropriately dealt with in another list or division do not stay within the M&C List.
The new Practice Direction 53B contains guidance on how defamation, misuse of private information, breach of confidence, data protection and harassment by publication claims should be set out in statements of case.
Practice Direction 7A has also been amended to allow all media and communications claims to be started in either the High Court or County Court, regardless of the claim's financial value, which will often be modest.
New Pre-Action Protocol
The new Pre-Action Protocol for Media and Communications Claims provides detailed guidance on the content of pre-action letters in defamation, privacy, breach of confidence, data protection and harassment claims. For defamation claims, this includes explaining "how or why" the claimant has been caused, or is likely to be caused, "serious harm". Corporate claimants are required to provide "such details as are available of the nature and value of the serious financial loss" caused or likely to be caused.
Letters of claim for misuse of private information must now set out the basis on which the claimant's Article 8 right to privacy outweighs the defendant's Article 10 right to freedom of expression.
The Protocol states that litigants in person should "in so far as reasonably possible, fully comply with this Protocol". This will be particularly relevant in the data protection context, which has seen an increasing number of claims brought by litigants in person seeking to enforce their rights under the GDPR.
Addleshaw Goddard's Reputation & Information Protection team has prepared a slide deck with more detailed guidance on all the above changes, which can be found here.