The Pre-Action Protocol for Media and Communications Claims
The Pre-Action Protocol for Media and Communications Claims applies to all cases involving defamation, misuse of private information, data protection law or harassment by publication, claims in breach of confidence and malicious falsehood arising from publication or threatened publication by the print or broadcast media, online, social media, or in speech.
The protocol encourages parties to disclose information to enable each other to understand their case and to promote the prospect of an early resolution. If a claim proceeds to litigation the court can consider the extent to which the protocol has been followed.
A litigant in person should still comply with the protocol. Once a solicitor becomes aware that the other party is acting in person, they should send that party a copy of the protocol.
The aims of the protocol are to enable the parties to:
- Understand and identify the issues in dispute and to share information and documents relevant to the claim.
- Make informed decisions as to whether and how to proceed.
- Try to settle the dispute to avoid proceedings or reduce the issues in dispute if proceedings are necessary.
- Control the costs and avoid unnecessary expense.; and
- Support the efficient management of proceedings where court proceedings cannot be avoided.
The parties should keep costs proportionate to the nature and seriousness of the case and the stage the complaint has reached.
Letter of Claim
The claimant should notify the defendant of his or her claim in writing at the earliest opportunity. The letter of claim must include the following information;
- The name of claimant;
- The nature of and basis for the entitlement to the remedies sought by the claimant;
- Any facts or matters relevant to England and Wales being the most appropriate forum for the dispute;
- Details of any funding arrangement in place.
Letter of Claim (Defamation, Slander and Malicious Falsehood)
The letter of claim should further include the following;
- Identify the publication containing the statement complained of.
- Include the statement complained of, the date of the publication; a copy or transcript of the statement, in the case of slander, where and the circumstances the statement was spoken;
- The imputation conveyed by the statement.
- Any factual inaccuracies or unsupportable comment within the statement complained of; the claimant should give a sufficient explanation to enable the defendant to appreciate why the statement is inaccurate or unsupportable.
- In defamation claims, how or why the statement has caused or is likely to cause serious harm and if the person complaining is a body that trades for profit such as a company, what serious financial loss is caused or is likely to be caused, for example lost profits;
- In slander or malicious falsehood claims, how or why the publication of the statement complained of has caused, or is likely to cause, special damage such as loss of customers or why publication of the statement is actionable without proof of actual loss; and
- In malicious falsehood claims, an outline of the case regarding malice.
- The letter of claim should also include when appropriate how you are identifiable and any special facts relevant to interpreting the statement complained of and/or any damage caused by the statement complained of.
Letter of Claim (Privacy, Breach of Confidence)
The Letter of Claim should in addition include;
- The information or categories of information you claim constitutes confidential information or which you say you have a reasonable expectation of privacy;
- Identify the publication;
- Provide details of the circumstances giving rise to confidentiality or a reasonable expectation of privacy;
- Why the information is information in respect of which you have a reasonable expectation of privacy or confidential information and why that should not be published, including details of damage or distress suffered or which will happen, unless the publication is restrained.; and,
- In claims for misuse of private information, why your right to private and family life outweighs the right to freedom of expression.
- In respect of confidential information, the extent to which the information is already in the public domain; the nature and any available details of any particular damage caused or likely to be caused by the publication, proposed publication or processing complained of.
- If you intend to bring the claim anonymously, you should say so.
Letter of Claim (Data Protection)
This should additionally include;
- Any further information necessary to identify the data subject.
- Identify the data controller.
- The information or categories of information, which it is claimed constitutes personal data, including the information which constitutes sensitive personal data, or to fall within a special category of personal data.
- Sufficient details to identify the relevant processing.
- The identification of the duties which have been breached and how they are said to have been breached, including any positive case on behalf of the claimant.
- Why the personal data ought not to be processed/further processed, if applicable.
- The details as to any damage caused or likely to be caused by the processing/breach of duty complained of.
Letter of Claim (Harassment)
This applies when the course of conduct includes a publication. The letter of claim should include the following;
- Sufficient details about the course of conduct including details to identify the publication or proposed publication forming part of the course of conduct;
- How or why the claimant says that the course of conduct amounts to harassment, including how or why it has caused, or is likely to cause, alarm or distress; and
- How or why and in what amount the course of conduct has caused financial loss.
Defendant’s Response to Letter of Claim
The defendant should provide a full response to the letter of claim, as soon as possible. If they believe that they will be unable to respond within 14 days (or such shorter time limit as specified in the letter of claim), then they should specify the date by which they intend to respond. The response should include the following:
- To what extent the claimant’s claim is accepted or not, and whether more information is required or whether it is rejected;
- If the claim is accepted in whole or in part, the defendant should state what remedies it is to offer;
- If more information is required, then they should specify what information and why;
- If the claim is rejected, then the reasons why, including an indication of any statutory exemptions or facts on which the defendant is likely to rely in support of any defence;
- In a defamation or malicious falsehood claim, the defamatory or false imputation it is contended was conveyed by the statement complained of, if any; and
and the defendant should indicate whether the defendant accepts such an anonymity order would be appropriate and the basis for the defendant’s position.
Settlement and Alternative Dispute Resolution
The parties should consider whether some form of alternative dispute resolution might enable them to settle their dispute without court proceedings
Where the protocol procedure has been followed and not resolved the dispute, the parties should complete a review of their positions.
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