incidence

This page offers statistics about the incidence of defamation, along with some indicators of awards and other data.

It covers -

• introduction
• how much defamation
• how much litigation
• demographics - who is suing, who is winning?
• drivers
• awards and costs

     introduction

Calls for changes to defamation regimes, such as Ted Lacey's 2004 Chasing Malice: The Need for Defamation Law Reform (PDF) and Rod Tiffen's Scandals, Media, Politics and Corruption in Contemporary Australia (Sydney: Uni of NSW Press 1999) are sometimes based on claims that there is too much or too little defamation litigation.

That is variously attributed to

• the depravity of contemporary society,
• the eagerness with which 'ambulance chasers' pursue media giants,
• the cost of litigation ("unaffordable by ordinary people") or
• innate biases in justice systems towards the great & ungood.

In practice there are considerable differences between regimes and caution is therefore appropriate in comparing practice in different countries or litigation within a specific nation in different eras.

Contrary to some claims, few nations appear awash in defamation cases - or even threats of cases.

     how much defamation

How much defamation is occurring, online and offline? The answer to that question is dependent on definitions.

It is clear that there is much scurrilous or otherwise offensive communication on the net, including statements in personal web pages, online newspaper and magazine articles, blogs, usenet and other fora postings and email. Much of that communication does not result in litigation, particularly litigation that is widely reported, and arguably would not result in substantial damages if an offended party proceeded to trial and a verdict (for example because a court might recognise an expression as rough but non-malicious sarcasm or the language common to a professional community frequenting a particular online forum).

It is unclear, however, whether the amount of libel and slander has increased. Examination of historical figures, for example complaints to the UK ecclesiastical courts, suggests that defamation may actually have decreased - whether because people are becoming more polite, more 'relaxed' about reputation or less prepared to invest considerable resources in defending their honour through litigation.

     how much litigation

Has there been an explosion of litigation, as is sometimes claimed by media pundits? The answer is not clear. A 2005 media release by legal publisher Sweet & Maxwell claimed that UK defamation cases are "at twice the level of a decade ago" and asked

Does this apparent increase have a chilling effect by forcing media groups into relentless self-censorship and threaten the existence of investigative journalism?

Examination of High Court case figures in England suggests that some concerns might be misplaced -

year 1996/97 1997/98 1998/99 1999/00 2000/01 2001/02 2002/03 2003/04 2004/05

rank 33 33 54 96 95 89 77 85 66

The 2004 Proposal for Uniform Defamation Laws report by the SCAG Working Group of State & Territory Officers supplied figures for defamation case filings and judgements in the NSW Supreme and District Courts. Given Sydney's reputation as Australia's 'defamation capital' those figures are worth bearing in mind.

Supreme Court Year 2000 2001 2002 2003

Filing 72 63 45 50

Judgement 21 29 9 21

District Court Year 2000 2001 2002 2003

Filing 38 43 34 15

Judgement 17 8 4 4

For context the report notes that in 2002 some 4,128 civil matters were filed in the Common Law Division of the Supreme Court, with 12,686 civil matters filed in the District Court.

The overall number of defamation writs in Australia in 2003 is reported to be 150, compared with 110 in the US and 206 in England. The number of letters or other requests for an apology, retraction or cessation of activity is not known. NSW MP Richard Jones noted in 2002 that the state produces more defamation writs per capita than England and the US: one writ in NSW per 79,000 people versus England produces one writ per 121,000 people in England and one writ per 2.3 million people in the US.

It would appear that on a per capita basis there are more trials - especially those that proceed to a verdict - in the US. There substantial variation across the US, with for example 6.02 trials per one million residents in Delaware, the defamation litigation state.

For most media groups - and increasingly for ISPs - receiving letters from aggrieved individuals, organisations or their lawyers is matter of course. Much of that contact does not result in a published apology, an out of court settlement or the opportunity to see barristers trade barbs in front of a judge. Specific figures are rarely available and much information is anecdotal. It is reported that the Fairfax media group received around 5 threats of legal action per week in 2001/2, with an average of 26 writs per year.

     demographics

Comparison of figures about the occupation of plaintiffs in NSW and US federal courts (% of cases by category) illustrates the impact of lower US protection for public figures -

occupation politicians executives professional employees media, sports, arts other

NSW 15 13 11 1 14 46

US 4 15 11 14 6 50

There is a similar divergence in the percentage by gender and affiliation -

category men women corporate

NSW 73 8 19

US 72 14 14

Media organisations tend to win under 50% of the defamation suits brought against them in the US, UK and Australia, with tabloids and television being less successful than broadsheets and specialist journals.

Defendants (by %) showed a similar variation -

defendants overall media - newspapers - broadcasting - magazines - books non-media - corporate

NSW 68 48 13 5 1 32 19

US 75 45 11 12 6 25 14

The US Media Law Resource Center comments of that 527 cases against US journalists and media organisations that went to trial from 1980 through 2004 the defendants won 199 (39%) of the 506 cases where there was a verdict at the end of the trial. Media defendants won 37.8% of trials involving public officials and 38.5% of trials involving private individuals. Although plaintiffs won 60.7% of tried cases, 25% of those plaintiff victories were modified by post-trial motions and in a further 10.5% the trial court used post-trial motions to reverse a jury verdict favoring the plaintiff and enter judgment for the media defendant. 47.8% of the awards that survived post-trial motions were reduced or eliminated on appeal.

     drivers

What is driving litigation action? How important is emulation?

The Sweet & Maxwell release noted above comments that in the UK

Many media organisations have complained that introduction of conditional fee agreements (CFAs) in 1998 has fuelled the rise in libel claims. Lawyers acting under a CFA represent their clients on a "no-win, no-fee" basis which means that, unless the case is successful, they waive their fee. Critics of the CFA system say that it encourages unmeritorious and speculative claims from gung-ho litigants with nothing to lose. If the case is won, the media defendant may also have to pay a success fee. However, supporters of the system argue that, in the absence of legal aid for defamation, without CFAs less affluent members of society would not be able to bring defamation claims and protect their reputation.
It is true that in the two years after CFAs were introduced the number of reported defamation court cases trebled to 96 a year in 2000. It is impossible to tell whether this was due to CFAs. In any event, for those that work in defamation law there is little evidence that the media are exercising more restraint in what they choose to publish.

     awards

Korieh Duodu commented of the UK in 2005 that

The advantages to both claimants and defendants of settling claims early has seen a gradual downturn in the number of libel cases fought all the way to final judgment. However, the media will continue to make mistakes, reputations will continue to be threatened and cases will still be pursued. If media groups still feel chilly, then they might make better use of the warm clothing which recent law reforms have offered.

Dennis Hale's 2002 The Impact of State Prohibitions of Punitive Damages on Libel Litigation: An Empirical Analysis (PDF) asked whether US state prohibitions on punitive damages influence the quantity and quality of media libel litigation, concluding that there was no effect.

What is the price of a reputation ... or merely the damage to an individual's honour and repute in a particular instance? Substantial awards or pre-trial settlements have gained attention along with famously derisory - or merely coolheaded - awards such as the farthing awarded to the agrieved Whistler.

There is considerable dispute about whether awards by juries (and decisions by appeal courts) are reflecting an 'inflation' in damages awarded for physical injury. Unsurprisingly it appears that some awards serve as a threshold. One example is the 1995 decision in Hill v. Church of Scientology, a Canadian case in which the appeal court upheld an award of C$1.6 million. Prior to that time the highest damages upheld on appeal in a Canadian defamation case was C$135,000. By 2000 awards of C$500,000 were not uncommon.

The MLRC Report noted above identifies a long-term increase in the average and median initial awards after trial, with initial trial awards rising from a 1980s average of US$1.5 million to a 1990s average of just under US$3 million and an average US$3.4 million since 2000. The 1980s median of US$200,000 rose to US$350,000 in the 1990s and US$724,500 since 2000.

     costs

What is the indicative cost of defamation action in Australia and elsewhere?

The answer again is not clear, because instances where legal costs were reported - typically by those boasting how much they were happy to pay to defend their honour or by litigants when costs were awarded to an opponent - may not be representative. In the UK and Australia there have been cases, such as the David Irving case, where costs for barristers, associates and experts has gone over the million dollar mark. We have noted suggestions that government figures in Singapore, Malaysia, Austria and elsewhere have consciously used defamation law as a tool to silence criticism, including impoverishing opponents through suits that exhaust the opponent's financial resources and energy

In practice, apart from personal anguish, the major cost of most defamation regimes may lie in the day to day handling of complaints and queries. In 2002 the UK Internet Service Providers Association (ISPA) for example claimed that responding to defamation complaints - substantive or otherwise - about online content costs between £50 and £1,000, a concern broadly endorsed by the 2002 Law Commission report (PDF).

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