Challenging the media on coverage of a personal nature

There is an article about me online that I disagree with — what are my options?’

Introduction

Finding that you are the subject of a media publication which is critical, makes insinuations about you or reports on matters that you consider private can be a distressing experience for both you and those close to you.

Media outlets and journalists that publish content which includes personal data or which otherwise reports on a person’s private affairs generally seek to rely upon one or more of the following grounds to justify:

• the information published is in ‘the public interest’
• their work is covered by freedom of expression
• the publication is covered by a statutory journalistic exemption.

Cumulatively, these justifications are wide. However, it is not sufficient for a publisher to seek to rely on these grounds as blanket exemptions. Publishers must be able to explain why the infringement of an individual’s rights, freedoms and interests is outweighed by public interest considerations and freedom of expression in each particular instance. Should a publication stray outside the realms of what is permissible there are multiple avenues of redress:

1. Defamation
2. Data Protection Rights
3. Complain to the Independent Press Standard Organisation (“IPSO”)

1. Defamation

A civil action for defamation, pursuant to the framework of the Defamation Act 2013, is the primary remedy where a publication adversely affects an individual’s reputation.

Broadly put, to successfully pursue an action for defamation a claimant must be able to establish that a statement has caused or would be likely to cause serious harm to their reputation. Last year in the case of Lachaux, the Supreme Court clarified that the level of harm caused by a statement should be determined by consideration of facts about its impact, not merely the meaning of the words. However, the ‘serious harm’ threshold remains a high one and it can be difficult to quantify the damage to an individual’s reputation.

Further, it is worth noting that there is a strict time limit of one year from the date of publication for issuing defamation claims. Any claim commenced outside this time frame will be subject to the court’s discretion.

Potential claimants should also bear in mind that, whilst a suitably worded pre-action letter to the relevant publisher threatening a claim for defamation may have the desired effect of securing the removal of the publication, if the matter does become contested and requires the intervention of the court to resolve it, the dispute may become expensive.

It is worth noting that defamation exists alongside a number of other civil causes of action including malicious falsehood, breach of confidence, harassment, and infringement of intellectual property rights — one of these tortious options may be used in conjunction with, or as an alternative to defamation as a course of action.

2. Data protection rights

In both UK and EU law, organisations that handle personal data are required, amongst other obligations, to ensure that a data subject’s rights are enforceable. Principal amongst these rights are:

• The right to erasure (GDPR Article 17 and DPA section 47) — the right to request that your personal data is erased by the processing entity
• The right to rectification (GDPR Article 16 and DPA section 46) — the right to request correction/completion of incomplete or otherwise inaccurate data (this would be a suitable option where you do not object to the article itself, but simply inaccuracies within it).

On receipt of a data subject request, data processors (in this instance the publisher of the offending content) have one calendar month to either comply with the request or reply substantively setting out their grounds for refusal. The judgment of the European Court of Justice in Google v Spain makes clear that, in considering a request for erasure, it is incumbent on the data processor to conduct a comprehensive balancing exercise between the rights of the individual data subject and those of the publisher. Any refusal of a data subject’s request must be grounded in a proper assessment of those competing interests.

Data subject requests under options (a) or (b) above may be made to two sources, the publisher(s) themselves and/or search engines.

If the publisher and/or search engine you have corresponded with does not handle the matter adequately or within the mandated timeframe, you may also consider submitting a complaint to the Information Commissioner’s Office (“ICO”).  The ICO has broad powers and may intervene in instances where they deem a data subject’s request meritorious.

On the other hand, if the publisher complies with a request to erase your personal data, the article should be deleted from the internet and further circulation prevented. In contrast, if a search engine complied with your request for erasure, then the article(s) would not cease to exist on the internet they would however be de-listed from search engine results, meaning that they would no longer be accessible through search terms.

Requesting the de-listing of material through search engines can be particularly useful in instances where the publication you are dealing with is not a mainstream newspaper, for example anonymous blogs or forums.  In some cases writing directly to the operators/authors of such publications, who can often be difficult to trace in the first instance and many of whom advertise not being intimidated by legal action as a point of pride, may serve only to spawn further adverse content and compound matters. Conversely, securing the removal of these links through search engines may make these webpages effectively inaccessible, thereby neutralising future adverse publicity caused by that publication.

3. Complain to the Independent Press Standards Organisation (IPSO)

IPSO is the independent regulator for newspapers and magazines within the UK. It is responsible for monitoring and enforcing compliance with the Editors’ Code which all member entities are bound to comply with. Where correspondence with the publisher has proven unproductive, seeking IPSO’s intervention (where that publisher is a member of IPSO) can be a helpful alternative.

IPSO has a range of powers including the ability to fine publishers up to £1 million and to compel corrections and/or apologies.

Where there is a legal issue in dispute, and you are within a year of the date of the relevant publication, IPSO can also be considered as a viable alternative to the court process due to its arbitration scheme. Availability of the scheme is subject to the relevant publication being a member of the compulsory IPSO arbitration scheme or, if it is a member of the voluntary version, consenting to arbitrate. The scheme is low cost to access and can achieve a faster resolution than court proceedings.

In short, the scheme involves the appointment of an independent media law barrister to adjudicate the dispute between the parties. The IPSO arbitrator (may amongst other remedies):

• grant damages up to a value of £60,000
• require the publisher to desist from the offending conduct
• require the publisher to delete the offending information from its website or other platforms over which it has control.

Conclusion

There are multiple options available for seeking redress against publications that infringe your rights. The optimal outcome in your dispute may be achievable by a combination of the options outlined in this series or a single remedy alone, however each dispute will be unique and may require the correctly timed use of several remedies as part of tactically nuanced approach.

If you or your organisation have found yourself the subject of unwanted media attention and you would like further advice about how to handle publications please contact our media team.