Pre-Action Protocol for Media and Communications Claims

Pre-Action Protocol for Media and Communications Claims (May 2025)

Overview and Purpose of the Protocol

The Pre-Action Protocol for Media and Communications Claims is a set of rules that governs how parties should behave before issuing court proceedings in disputes concerning defamation,
privacy, data protection, harassment by publication, breach of confidence, and malicious falsehood arising from published or broadcast material. Introduced after the creation of the specialist Media and Communications List in 2017 and updated following a 2019 consultation, this Protocol replaced the earlier defamation-only protocol and expanded its scope to reflect modern forms of communication (including online and social media). It aims to encourage the early exchange of information and to provide a clear framework within which parties can explore settlement before resorting to litigation. In essence, the Protocol’s goals are to help parties understand the issues in dispute, make informed decisions about how to proceed, attempt to resolve matters without court proceedings, control costs, and, if litigation is unavoidable, manage the case efficiently. Compliance with the Protocol is expected of all parties – even those without legal representation are urged to follow it as far as reasonably possible – and courts will treat the Protocol as setting the standard for reasonable pre-action conduct.

Scope and Application in Media Disputes

The Protocol applies to all media and communications claims in England and Wales, broadly defined in Civil Procedure Rule (CPR) 53.1 to include claims in defamation (libel and slander) (see our defamation page), misuse of private information, data protection law breaches, and harassment by publication, as well as related claims such as breach of confidence and malicious falsehood, so long as they arise from publication or threatened publication via print, broadcast, online or social media, or even speech. This wide scope ensures that a single pre-action regime covers the variety of disputes handled by the High Court’s Media and Communications List. By establishing a unified framework, the Protocol remedies the past situation where only defamation had a bespoke protocol and claimants with other media-related grievances had to rely on the general Practice Direction on Pre-Action Conduct. The updated Protocol explicitly acknowledges certain distinctive features of media and communications cases. Notably, time is often “of the essence”, these claims typically involve urgent concerns such as ongoing damage to reputation or privacy, and the limitation period for defamation and malicious falsehood is uniquely short (only one year). Almost invariably a claimant will be seeking prompt remedial action (like an immediate correction or apology) to mitigate harm, so delays can be highly prejudicial. The Protocol is mindful of this urgency and is designed to be used flexibly and quickly when needed. At the same time, the Protocol stresses proportionality: the steps taken at the pre-action stage, and the costs incurred, should be reasonable and proportionate to the nature and gravity of the case. Disproportionate costs spent on pre-action sparring will not be recoverable later as litigation costs. Thus, the Protocol seeks to strike a balance between moving fast where necessary and not front-loading excessive expense.

Another important purpose of the Protocol is to narrow the issues in dispute (or even resolve them completely) before court proceedings are filed. By requiring each side to set out its position clearly in writing, the Protocol helps avoid ambushes and encourages frank discussion of the merits at an early stage. The court’s Practice Direction on Pre-Action Conduct and Protocols (which applies where no specialist protocol exists) underlines that litigation should be a last resort and that non-compliance with pre-action requirements may be taken into account by the court. The Media and Communications Pre-Action Protocol reinforces those principles in a context where the stakes, both in terms of public interest and personal reputational or privacy rights can be high. It provides a roadmap for claimants and defendants to follow, ensuring both sides have a fair opportunity to state their case and consider the other’s position before the matter reaches a courtroom.

Duties on Claimants: The Letter of Claim

The process under the Protocol is initiated by the claimant. The claimant should notify the defendant of the claim in writing at the earliest reasonable opportunity. It must be detailed enough to enable the defendant to understand the complaint fully and to respond in an informed manner. At a minimum, the letter should include the claimant’s name and a clear summary of the basis of the claim and the remedies sought. It should also mention any facts relevant to jurisdiction, specifically, why England and Wales is the appropriate forum for the dispute if there is a potential international element. (This requirement is particularly significant for defamation cases involving foreign parties; under section 9 of the Defamation Act 2013, a claimant not domiciled in the UK must show that England and Wales is clearly the most appropriate place to bring the action. The Protocol accordingly asks claimants to address forum issues upfront.) Additionally, the letter should disclose whether the claimant has any funding arrangement in place for the case (for example, an after-the-event insurance). While success fees are no longer recoverable from opponents, this disclosure gives the defendant notice of whether the claimant has insurance or third-party funding that might affect their approach to costs and settlement.

Beyond these general points, the Protocol provides guidance for the content of the Letter of Claim depending on the cause of action. For defamation claims (libel or slander) and malicious falsehood, the letter should identify the specific publication or broadcast that is complained about, including details such as the newspaper or website and the date of publication (enclosing a copy or link if available). The actual words complained of should be set out, especially in libel cases; in slander (spoken defamation), the claimant should state when, where, and how the words were spoken as far as they are known. The claimant should then state the imputation he or she contends the words convey, (meaning in defamation), essentially, the meaning which is alleged to be defamatory. It is also important to explain why the statement is false or misleading, or, if it’s an opinion, why it is not a defensible opinion: the claimant should highlight any factual inaccuracies or baseless comments within the statement and provide a sufficient explanation so that the defendant can appreciate why the claimant says the statement is wrong. Since the Defamation Act 2013 introduced a “serious harm” threshold for defamation claims, the Protocol explicitly requires the claimant to address this.

The Letter of Claim must outline how or why the publication has caused or is likely to cause serious harm to the claimant’s reputation (and in the case of a for-profit company, what serious financial loss has been or is likely to be incurred as a result). This effectively compels the claimant to grapple with the statutory test in section 1 of the Defamation Act 2013 at the pre-action stage, giving the defendant early notice of the claimant’s case on serious harm. In slander (spoken defamation) or malicious falsehood claims, where damage may not be presumed, the claimant should state any special damage suffered (e.g. specific financial loss) or explain why the statement is actionable without proof of actual loss (for example, slander per se in certain categories).

And in a malicious falsehood claim, the claimant should give an outline of the case on malice, that is, why it is alleged the defendant published the false statement maliciously (knowing it to be false or recklessly not caring whether it was true or false). Finally, if relevant, the letter should note any special facts that bear on the interpretation of the words or the extent of harm, for instance, if the claimant is not named in the publication but identifiable by other details, the letter should state that, or if there is particular context that exacerbates the damage, it should be mentioned. In short, a defamation Letter of Claim under this Protocol is quite comprehensive, often running to several pages, because it must lay out the who, what, when, and why of the alleged libel/slander in considerable detail.

For misuse of private information or breach of confidence claims, similarly detailed requirements apply, but tailored to the nature of those claims. The Letter of Claim should describe the information in question or the categories of information that the claimant says are private or confidential. It should identify any publication in which that information has appeared or is threatened to appear (for example, a specific article, broadcast, or online post). The claimant must explain the circumstances that give rise to a duty of confidence or a reasonable expectation of privacy. For instance, was the information obtained through a confidential relationship, or is it obviously private (such as medical or intimate personal information).The letter should then state why this information should not be published or further published including details of any harm already caused or anticipated if publication continues.

If the claimant has already suffered distress or other damage from an initial publication, that should be described, and if an interim injunction (gag order) or final injunction is sought to restrain publication, the urgency and reasons for that should be made clear. Notably, for misuse of private information claims (the tort which protects privacy in UK law), the Protocol says the letter should set out why the claimant’s privacy rights outweigh the defendant’s right to freedom of expression in the circumstances. This reflects the balancing exercise inherent in such cases (often between Article 8 and Article 10 of the European Convention on Human Rights) and ensures the claimant addresses potential counter-arguments about the public interest or free speech at an early stage. In breach of confidence cases, the claimant might need to indicate the extent to which the information is already in the public domain (since if it’s widely available, an argument can be made that it’s no longer confidential). Furthermore, if the claimant intends to seek anonymity in any court proceedings (for example, a privacy claimant who does not want their identity disclosed in connection with the case), the letter should expressly say so and give an indication of the legal basis for that request. This lets the defendant know in advance that an anonymity application may be made, so the defendant can consider its position on that issue (the defendant’s response will be expected to address it, as discussed below).

In data protection claims (for example, a claim under the UK General Data Protection Regulation and Data Protection Act 2018 for misuse of personal data), the Protocol likewise expects a thorough pre-action letter. The claimant should identify who the data subject is (if not obvious, e.g. if acting in a representative capacity) and confirm the relevant data controller (the entity the claim is against). The letter needs to specify what personal data is at issue (and if any of it is sensitive or “special category” data under data protection law). It should give details of the processing complained of – for instance, was personal data published online without consent, or misused in a news article, or otherwise processed in violation of data protection principles? – and which duties or provisions of data protection law were breached. The claimant must outline how exactly the defendant’s conduct failed to comply with the law (e.g. processing without a lawful basis, or publishing in breach of privacy rights) and what the claimant’s positive case is in that regard. Additionally, as with other claims, the letter should convey what harm has resulted or is likely: it should describe any damage (which can include emotional distress) suffered due to the data breach or misuse. If the claim is being brought by a representative body on behalf of numerous data subjects (a scenario permitted by Article 80 GDPR in some cases), the letter should provide information about that body’s standing and list the individuals represented or at least confirm that they have mandated the body to act for them. Data protection claims can be complex, but the overarching principle remains that the defendant is entitled to know the essence of the alleged wrongdoing and its consequences before proceedings begin.

Finally, for harassment claims where the alleged harassment involves a course of conduct including publications (for example, a series of online posts or newspaper stories that collectively amount to harassment of the claimant), the Letter of Claim should set out the nature of the course of conduct and include sufficient details to identify the publications in question. The claimant should explain why this conduct is said to amount to harassment typically by showing it has caused (or is likely to cause) alarm or distress beyond what a person should reasonably have to tolerate. Any specific financial loss caused by the harassment (perhaps reputational damage leading to loss of business, etc.) should also be noted if relevant. Harassment by publication cases straddle defamation/privacy and the Protection from Harassment Act 1997; by laying out the pattern of behavior and its impact, the claimant gives the defendant a chance to consider changing that behavior or resolving the complaint without litigation.

Duties on Defendants: Responding to a Claim

Upon receiving a Letter of Claim, the defendant is obliged to consider it promptly and reply within a reasonable period. The Protocol suggests that a full response should be provided as soon as possible, and in any event within 14 days of receipt of the Letter of Claim – unless the claimant’s letter specified an even shorter timeframe due to particular urgency. This 14-day guideline is significant. Previously, under the general pre-action practice rules, defendants in complex cases could argue for up to three months to respond, but the Media and Communications Protocol standardises a much brisker timeline for all cases in this field. If a defendant genuinely cannot respond within 14 days, the Protocol requires them to write to the claimant within that period to explain why and to specify a new date by which they will respond. This prevents defendants from simply remaining silent – they must either respond or formally request more time. The expectation of a quick turnaround underscores the Protocol’s recognition of the need for speed in media disputes, and it discourages tactical delay. In practice, if more time is needed (for example, to gather information or because key personnel are unavailable), claimants often grant a reasonable extension, but they are not obliged to tolerate indefinite delays. If a claimant feels a defendant is stalling without good reason, they could ultimately proceed to issue proceedings, citing the defendant’s lack of a timely response.

A Defendant’s Response under the Protocol should be constructive and detailed, addressing each aspect of the claim. It should begin by stating the defendant’s position on the claim whether it is accepted in whole, accepted in part, or denied. The defendant should respond to the claimant’s demands: for instance, if the claimant asked for an apology or takedown of an article, is the defendant willing to do that or not? The Protocol encourages clear communication: if the claim (or any part of it) is accepted, the defendant should say so and indicate what remedies or compensation it is prepared to offer to settle the matter. It is not uncommon in defamation cases, for example, for a defendant at the pre-action stage to offer to publish a correction or apology, or sometimes to offer a sum of money, in order to avoid litigation. If the defendant is open to resolving the dispute, the Response is the opportunity to make that known explicitly.

If the defendant finds the Letter of Claim lacking in information or has trouble understanding the case, the defendant can say that more information is needed and should precisely identify what further information or documents are required and why they are necessary to provide a substantive reply. For example, a defendant might say: “We note you have alleged serious financial loss but have not provided details; please let us know what loss you attribute to the publication, as this will affect our response.” Requests for further information should not be a dilatory tactic; they should be genuinely directed at clarifying the claim. The claimant should answer reasonable requests of this kind promptly, as part of the cooperative spirit of the Protocol.

If the defendant rejects the claim (in whole or in part), the Response must explain the reasons for the rejection, rather than a bare denial. This explanation should include reference to any defences the defendant intends to rely on. In defamation cases, for instance, the defendant might invoke the defence of truth (justification), honest opinion, or publication on a matter of public interest, or perhaps a privilege (such as absolute or qualified privilege). (see defences to defamation)

In a privacy case, the defendant might argue that the publication is in the public domain or is on a matter of public interest that outweighs the claimant’s privacy rights. In a data protection case, the defendant might contend that it had a lawful basis for the processing or that an exemption (such as journalistic exemption) applies. The Protocol specifically notes that a rejecting defendant’s response should give “a sufficient indication of any statutory exemptions or facts” that the defendant is likely to rely on in support of a substantive defence. By doing so, the defendant helps crystallise the dispute: the claimant can see what the battle lines will be if the case proceeds – for example, whether it will be fought over truth of the allegation, or over the claimant’s ability to prove serious harm, or over a public interest justification, etc.

In some instances, the defendant might accept that the claimant was defamed but dispute the extent of harm, or admit one statement was wrongful but not another. The Response is the place to make these distinctions clear. Moreover, for defamation and malicious falsehood claims, the Protocol recommends the defendant address the issue of meaning. If the defendant does not agree with the claimant’s asserted interpretation of the words, the defendant should indicate what meaning it believes the words convey (if any defamatory meaning at all). (how courts determine meaning)

For example, a claimant’s letter might say, “The article accuses me of fraud,” but the defendant might respond, “We do not agree that the article accuses you of fraud; in our view, it raises concerns about financial mismanagement, which is not the same as alleging fraud.” By identifying the imputation as the defendant sees it, the defendant not only signals a potential defence (that the words are not defamatory or not as harmful as claimed) but also sets the stage for a possible preliminary issue on meaning if litigation ensues. Resolving differences over meaning early can save time and costs later, since the meaning of the words is often the first thing a defamation trial addresses.

Additionally, if the claimant’s letter indicated an intention to seek an anonymity order or any other unusual procedural step (such as a privacy injunction), the defendant’s Response should state its position on that. The Protocol guidance is that where the claimant plans to apply to proceed anonymously (often relevant in private information cases or cases involving vulnerable claimants), the defendant should say whether it consents to or will oppose such an order, and briefly why. This doesn’t bind the defendant permanently, but it helps to know pre-action if anonymity will be contested or agreed, as that could influence how the claimant approaches court (a contested anonymity application is a significant aspect of a case).

Early Resolution and Alternative Dispute Resolution (ADR)

A fundamental aim of all pre-action protocols is to facilitate settlement discussions before court proceedings are launched, and this is especially pertinent in media and communications cases. Litigation in these areas can be expensive and unpredictable, and public trials can sometimes exacerbate the harm (for instance, repeating a defamatory allegation in open court or attracting further media attention to a private matter). Therefore, the Protocol emphasises that litigation should be a last resort and that both parties should earnestly explore alternatives to going to court. By the time a Letter of Claim and Response have been exchanged, each side should have a relatively clear view of the other’s position. This is an opportune moment to ask: Can we resolve this dispute now, without a lawsuit?

The Protocol specifically calls on parties to consider Alternative Dispute Resolution (ADR) methods. It even warns that an unreasonable refusal to engage in ADR might be considered by the court when awarding costs. In the context of media claims, ADR can take several forms. The simplest is direct negotiation: the claimant’s and defendant’s lawyers (or the parties themselves) might hold without-prejudice discussions to see if they can settle the matter. This could involve a meeting or telephone conference in which apologies are discussed, corrections are negotiated, or sums of damages are haggled over. Another avenue is mediation, where an independent mediator (often a senior barrister or former judge experienced in media law) facilitates a structured settlement discussion in a confidential setting. Mediation can be very effective, allowing the parties to air their concerns and explore creative solutions (for example, agreements on future conduct or right of reply in addition to or instead of money). The Protocol also suggests early neutral evaluation as an option. That might involve getting a non-binding opinion on the merits from an expert – perhaps asking a Queen’s Counsel or retired judge to read the papers and indicate how strong the claim and defence appear. While not binding, this can inject a dose of reality if one side has an overly optimistic view of their case. Additionally, in the case of disputes involving the media, there may be industry-specific mechanisms: for instance, if the defendant is a member of a press regulator like IPSO (Independent Press Standards Organisation) or IMPRESS, those bodies have complaints procedures and even arbitration schemes for resolving disputes. The Protocol mentions reference to a press regulator or its arbitration scheme as a form of ADR that could be considered. Indeed, IPSO’s arbitration scheme (though voluntary and subject to both parties agreeing to use it) can decide defamation and privacy claims and award damages up to a certain cap, offering a potentially quicker and cheaper route than the High Court.

Even as settlement is encouraged, parties must keep one eye on the limitation clock. In defamation, as noted, the limitation period is one year from publication. That means a claimant must issue a court claim form within one year of the date of the libel/slander or else they are time-barred (except in rare circumstances where the court might disapply the limit). Privacy, data protection, and other torts typically have a longer limitation (up to six years), but a year is still a significant period in those contexts too, because evidence can degrade or circumstances change. If negotiations are ongoing and the deadline is approaching, cautious claimants will often issue protective proceedings – essentially filing the claim to stop the clock, then immediately staying (pausing) the case to continue negotiations. Alternatively, parties can agree in writing to extend the limitation period for a short time, though in defamation the court’s permission is needed to actually allow a claim out of time, so an agreement to “extend” isn’t straightforward as it is in some other areas. The safest course in defamation is usually to issue before the year expires, even if you hope to settle, just to preserve the claim.

Reviewing Positions Before Litigation: The “Stocktake”

If, despite everyone’s best efforts, the dispute is not resolved after the initial exchange of letters and any subsequent discussions or ADR, the Protocol suggests that the parties undertake a “stocktake” before proceeding to litigation . This is essentially a pause to review the case afresh. Each side should look back at their own position and the opponent’s position: What are the key issues that remain? How strong or weak do the claims and defenses appear now that the main facts have been exchanged? Importantly, are the parties’ positions really so far apart that court proceedings are inevitable, or is there a middle ground that has not yet been explored? The stocktake encourages a final reflection on settlement prospects. In some instances, it may prompt a party to make a better offer or to narrow the issues by abandoning a weaker point. It’s a last chance to avoid the cost and stress of litigation. Practically, this might involve an internal meeting within a company or a consultation between a client and their lawyers to weigh the business and legal pros and cons of fighting on versus settling. From a legal standpoint, by the end of the Protocol process, the parties should also be considering case management issues for trial (which witnesses might be needed, what disclosure might entail, etc.), which can be part of this stocktake. If the decision is to proceed with litigation, the Protocol expects that the parties will have narrowed the issues as much as possible, and they will be able to file statements of case (Particulars of Claim, Defence, etc.) that focus only on the matters truly in dispute, many preliminary matters having been resolved or clarified through the pre-action correspondence.

Consequences of Failing to Comply with the Protocol

The Pre-Action Protocol for Media and Communications Claims is part of the Civil Procedure Rules framework, and compliance with it is taken seriously. The Protocol itself reminds parties that the court will consider the extent of compliance when giving directions and when making orders about costs. This is not an empty threat: if a party unreasonably fails to comply with the Protocol, they can face significant sanctions once the case is before a judge. The types of sanctions that a court may impose are spelled out in the Practice Direction on Pre-Action Conduct (which applies to all protocols). In summary, the court has a wide discretion to penalise non-compliance in various ways, depending on the justice of the case. Common sanctions include cost orders that are unfavourable to the offending party. For example, the court might order the party in breach to pay the other side’s costs of the proceedings, either in whole or in part, regardless of who wins the case ultimately. This can be a hefty penalty. It means that even if a non-compliant claimant wins the lawsuit, the court could deny them some or all of their legal costs, or even order them to pay a portion of the defendant’s costs, because of missteps at the pre-action stage. Conversely, a non-compliant defendant who eventually wins at trial might still be ordered to pay the claimant’s costs, or lose the right to recover their own costs, due to obstructive behavior before the claim was issued.

Another possible sanction concerns interest on damages. If a claimant has failed to follow the Protocol, the court may decide to deprive them of some or all interest on any damages awarded, which can amount to a few percentage points over several years, not trivial sums in a high-value case. If it’s the defendant who breached the Protocol, the court could order that the claimant be paid higher interest on damages than normal, to reflect the inconvenience and cost the claimant incurred due to the defendant’s non-compliance. In extreme cases, where non-compliance has led to unnecessary litigation, the court might even stay (pause) the proceedings or adjust the timetable to force compliance. For instance, if a claimant ignored the Protocol entirely and rushed to court, the court might stay the claim to require the parties to go back and complete the Protocol steps (except where there’s urgency or other good reason for the rush). The court can also, when making case management decisions, refuse to grant certain relief until the parties have complied – for example, it might not allow a claimant to add a new claim or rely on certain evidence if doing so surprises the defendant in a way that proper pre-action process would have avoided. (offer of amends process)

In addition to cost sanctions, another consequence of not following the Protocol is more subtle but often significant: it can affect how the court manages the case. A party who has been uncooperative pre-action may find the court less sympathetic to requests for indulgence during proceedings. For instance, a defendant who refused to respond pre-action and thereby forced the claimant to issue might struggle to obtain extensions of time later or might face stricter disclosure orders. Judges are keen to reinforce the culture of compliance and cooperation that the Protocol embodies. Conversely, a party that can demonstrate it did everything by the book – e.g. sent a detailed letter, responded reasonably or tried to engage in ADR – will generally be looked upon favorably in case management and costs discussions.

See our pages on meaning in defamation, defamation damages, and offer of amends.