In 2003 I was the subject of an article in the Daily Mail, resulting from an interview I willingly gave for the Female section of the newspaper. The article that appeared bore little or no resemblance to the facts and I brought a claim for defamation acting as a litigant in person. Associated Newspapers, owners of the Daily Mail, applied to have my claim dismissed on the grounds it had no prospect of success because the words complained of could not be construed to be defamatory, but in a hearing before Justice Tugendhat in 2005 it was ruled my claim could proceed.
In the 18 months or so between the story appearing and the court hearing, the article and the legal action consumed my life. I’ve written about that time in detail in a previous blog. Despite the detrimental effect this mostly fabricated article had on my life, I discovered that I had no access or entitlement to legal help to put right the damage that had been caused.
When the reality of what had been written about me in a national newspaper sunk in, I went to a local solicitors’ firm which offered free consultations. They (quite rightly) advised me that they couldn’t help and that I’d need to see a solicitor who specialised in media. I found one in Liverpool and he agreed to write to Associated Newspapers on my behalf for a fixed fee. But when that provoked a response of ‘we stand by our article’, the solicitor sympathised but said he couldn’t help me any further unless I was prepared to pay upwards of £20,000, his estimate of the minimum it would cost if Associated Newspapers refused to back down and it went to court.
I contacted the renowned media law specialists Carter Ruck in London who, on being presented with my emailed interview responses to the journalist, agreed that the article bore little resemblance to reality but refused to take on my case on a ‘no win, no fee’ basis implying my experience was a common one and the damage I had experienced wasn’t great enough to warrant a claim.
So I wrote again to the chief executive of Associated Newspapers, again pointing out the inaccuracies and fabrications. His response ignored all my points and stated that Associated Newspapers would not enter into any further correspondence with me and considered the matter closed.
The only option left to me was to pursue the matter myself. I knew the majority of the article was fabricated and to receive a response telling me that the nonsense printed about me was accurate incensed me. Luckily, I was self-employed and worked from home so I had the flexibility to fit in the case around my other commitments, but it was hard work. With children of four and 10 and a living to earn, sleep depravity became the norm and I frequently worked until four in the morning, grabbing a few hours’ sleep and then getting up again at seven to take the children to school.
My work suffered, my health suffered, I was irritable and depressed and my social life was non-existent. But my anger and determination to proceed grew with every piece of correspondence I received from Associated Newspapers’ legal team telling me that the article was correct and there was evidence to prove it, because it simply wasn’t true.
The case progressed to a hearing before Justice Tugendhat at the Royal Courts Of Justice, and when I received my bundle of papers from Associated Newspapers’ legal team it included an application for costs. They were seeking to recover just under £23,000. As I was self-employed with no business assets to speak of and lived in a rented home I knew I had nothing to give them if I lost, so it didn’t deter me. Had the threat of losing my home been hanging over me, I simply wouldn’t have taken the risk.
In June 2010 Justice Tugendhat, the same judge who heard my claim, defined the meaning of defamation. In a claim brought by author Dr Sarah Thornton against Telegraph Media Group Ltd, in which she claimed a book review given by the journalist Lynn Barber was defamatory, Justice Tugendhat set a higher threshold for the definition of defamation, declaring the words complained of could only be considered defamatory if a substantial adverse effect could be proven, rather than merely an adverse effect. Dr Thornton went on to win her claim in a hearing at the High Court in July 2011, but the definition stands.
While this definition of seriousness serves to eliminate trivial claims and was seen as a victory for press freedom, it also made it more difficult for ‘ordinary’ people to address misrepresentation and untruths in the media. The portrayal of them may not be accurate, but has it caused serious damage? Does shame and embarrassment constitute serious damage? Perhaps not in a legal sense, but in the life of the person on the street it can have a very real effect.
Access to justice for those misrepresented in the media has now been dealt a further blow with the proposed changes to no win, no fee legal advice. For those who can show a substantial adverse effect of the words printed about them, specialist media lawyers such as Carter Ruck were willing to take on claims on a conditional fee arrangement providing recourse to those who had been damaged by media mistruths.
The proposed reforms prompted by Sir Rupert Jackson’s report on civil litigation funding will shift the costs of funding civil litigation from the defendants and their insurers to claimants and their lawyers. This will undoubtedly discouraged media lawyers from taking on cases from people like me, people who have no access to funds or people who risk losing their homes should they lose their case.
The people who will be most affected by these changes are the people who have most to lose. ‘Ordinary’ people who believe what they read in the papers and happily agree to give interviews and pose for photographs with no idea that their words will be twisted and their stories fabricated to fit an unknown agenda. People who don’t have PR agencies to launch damage limitation exercises when they’re misrepresented. People who have to go about their daily business burning with shame. People who stand to lose livelihoods or relationships as a result of the lies that have been printed supposedly in their own words, all for the sake of sexing up a story that wasn’t deemed juicy enough or didn’t quite fit the brief the journalist was given. These people have no public platform to renounce the lies, and with these changes to libel laws the only chance they had of accessing justice is being taken away.
Juliet Shaw is a copywriter and communications consultant and is in the first year of a law degree at Salford University.