Speculate and get Sued – Privacy in Defamation Cases

It is not always necessary for a claimant in defamation to be identified by name. A claimant may be able to establish a cause of action in defamation based on inference; that is to say if there is evidence that the statements which have been published are about the claimant and a reasonable person would understand that these were about the claimant. It is important to emphasise that each case is unique and depends on its own facts and circumstances. There may for instance be a sufficient description of the claimant or there may be extrinsic facts and matters known to some people which may lead a reasonable person to identify the claimant. A publisher may also be liable where it defames an unnamed person who is identifiable to a small number of people but later identifies that person generally to its readers. Whilst the claimant has the burden of proving that the statements identified him if he can do that then it is a matter for the defendant to put forward a defence. The issue of identification is one that goes to serious harm to a person’s reputation and damages.

There are cases where people have not been identified but have won their cases for defamation;

• Baturina v Times Newspapers Ltd [2011] in which the Times published a story that Mrs Baturino had purchased a house through a company registered in the BVI. The innuendo of the article was that she had failed to comply with Russian law which required all officials and civil servants to provide information about income and assets and she had therefore lied. Her claim for defamation on alleged innuendo was allowed to proceed in respect of certain categories of readers ( those in Russia who would have understood the innuendo). This case is very relevant to the current situation as it is based on innuendo.
• The Lord McAlpine of West Green and Sally Bercow (2013 EWHC 1342 QB) is a case in which the BBC broadcast a report containing serious allegations of child abuse by a senior conservative party figure from the same era as when Lord McAlpine had been a senior politician. The alleged abuser had not been identified by name. Sally Bercow published a statement on Twitter which had asked why Lord McAlpine’s name was “trending”. Lord McAlpine issued libel proceedings. It was held that the words, either in their natural and ordinary meaning or by innuendo, were defamatory bearing the meaning that he was a paedophile guilty of sexually abusing boys living in care.

Privacy in Defamation cases

The real issue for any publisher is that of privacy risk; in Bloomberg LP (Appellant) v ZXC (Respondent) (Supreme Court 16 February 2022) ZXC claimed he had a reasonable expectation of privacy. The first instance judge held that Bloomberg had published private information that was in principle protected by Article 8 of the Convention on Human Rights. The first instance judge conducted a balancing exercise of the rights of ZXC against those of Bloomberg and favoured ZXC. The Supreme Court held that, in general “ a person under criminal investigation, has prior to being charged a reasonable expectation of privacy in respect of information relating to that investigation”. The same could apply in the case of the a person who is not named but about whom stories are being published; that person will have a right and expectation to privacy ; based on caselaw that right would be respected by the law.

Contact our Defamation Lawyers today

For advice on Defamation please contact Shubha Nath at Nath Solicitors on 020 8138 9373 or get in touch with the firm online.