On 5 August 2022, Alex Jones, the USA-based conspiracy theorist, was ordered by the Courts in Texas to pay to the parents of a six-year-old boy killed in the Sandy Hook shooting damages totalling $45.2m in punitive damages and $4.1m in compensatory damages. This case related to a claim on Jones’ radio show and webcast that the Sandy Hook massacre was a hoax using crisis actors as a reason to take away Americans’ gun rights. The Claimants in that action claimed that they had been subjected to harassment and even death threats from Jones’ followers as a result of the claims made by Jones.
Internationally there appears to be a move towards claimants pursuing individuals spreading hate speech.
Recent defamation case law and the damages awarded in the Courts of England and Wales
We previously commented on a case involving a Syrian schoolboy, who had been wrongly accused of being part of a gang that assaulted a school girl (our previous blogs on that matter can be read here and here).
Mr Hijazi, in that case, was only awarded £100,000 in damages for the libellous videos posted about him on Mr Yaxley-Lennon’s social media. This was so even though he too was a victim of abuse from members of the public as a result of Mr Yaxley-Lennon’s comments. The purpose of this blog is to consider the vast difference in damages awarded to Mr Hijazi compared to those awarded in the case against Alex Jones and to set out how, given that the writer is not an expert on USA law and accordingly cannot comment on how the Court has reached the decision it did, the Courts of England and Wales reach a decision on damages when defamation is found.
The largest part of the compensation awarded in the Alex Jones case relates to punitive damages (i.e. to punish Mr Jones for his conduct). In the case of Lachaux v Independent Print Ltd & Anor [2021], the Court made it clear that in defamation cases damages are set to compensate the claimant for the damage to their reputation, rather than to punish the defendant. This appears to be a significant distinction between the approach taken by the USA Courts when compared to that adopted by the Courts of England and Wales.
In the case of John v MGN Ltd [1995], Sir Thomas Bingham MR summarised the principles for assessment of damages in defamation cases as follows:
“The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must [1] compensate him for the damage to his reputation; [2] vindicate his good name; and [3] take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation the most important factor is [a] the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. [b] The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. [c] A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that [d] compensatory damages may and should compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way. Although the plaintiff has been referred to as ‘he’ all this of course applies to women just as much as men.”
Mr Justic Nicklin, in his judgment in the Hijazi case, further summarised the key factors for the Court to take into account as follows:
“(1) The initial measure of damages is the amount that would restore the claimant to the position he would have enjoyed had he not been defamed…
(2) The existence and scale of any harm to reputation may be established by evidence or inferred. Often, the process is one of inference, but evidence that tends to show that as a matter of fact a person was shunned, avoided, or taunted will be relevant. So may evidence that a person was treated as well or better by others after the libel than before it.
(3) The impact of a libel on a person’s reputation can be affected by:
a) Their role in society…
b) The extent to which the publisher(s) of the defamatory imputation are authoritative and credible…
c) The identities of the publishees. Publication of a libel to family, friends or work colleagues may be more harmful and hurtful than if it is circulated amongst strangers. On the other hand, those close to a claimant may have knowledge or viewpoints that make them less likely to believe what is alleged.
d) The propensity of defamatory statements to percolate through underground channels and contaminate hidden springs, a problem made worse by the internet and social networking sites, particularly for claimants in the public eye…
(4) It is often said that damages may be aggravated if the defendant acts maliciously. The harm for which compensation would be due in that event is injury to feelings.
(5) A person who has been libelled is compensated only for injury to the reputation they actually had at the time of publication. If it is shown that the person already had a bad reputation in the relevant sector of their life, that will reduce the harm, and therefore moderate any damages. But it is not permissible to seek, in mitigation of damages, to prove specific acts of misconduct by the claimant, or rumours or reports to the effect that he has done the things alleged in the libel complained of…
(6) Factors other than bad reputation that may moderate or mitigate damages, on some of which I will also elaborate below, include the following:
a) “Directly relevant background context” within the meaning of Burstein -v- Times Newspapers Ltd[2001] 1 WLR 579 and subsequent authorities. This may qualify the rules at (5) above.
b) Publications by others to the same effect as the libel complained of if (but only if) the claimants have sued over these in another defamation claim, or if it is necessary to consider them in order to isolate the damage caused by the publication complained of.
c) An offer of amends pursuant to the Defamation Act 1996.
d) A reasoned judgment, though the impact of this will vary according to the facts and nature of the case.
(7) In arriving at a figure it is proper to have regard to (a) Jury awards approved by the Court of Appeal… (b) the scale of damages awarded in personal injury actions…(c) previous awards by a judge sitting without a jury…
(8) Any award needs to be no more than is justified by the legitimate aim of protecting reputation, necessary in a democratic society in pursuit of that aim, and proportionate to that need…This limit is nowadays statutory, via the Human Rights Act 1998.”
How damages are awarded in defamation cases in the Courts of England and Wales in comparison to the USA
The above passages demonstrate several things, including that:
- The level of damages in defamation cases is to a large extent a matter of discretion for the presiding Judge and accordingly, the precise outcome is difficult to predict;
- Notwithstanding the point immediately above, the above discretion is to a point tempered by the need for the Judge to consider previous precedents as to the level of damages in both defamation cases decided by Judges and Juries and in personal injury cases;
- Damages are designed in the Courts of England and Wales to compensate for the damage to reputation rather than to punish the defendant; and
- Notwithstanding the point immediately above, it is open to the Court to consider aggravating factors when assessing damages.
In light of the above, it is highly unlikely that damages in defamation claims decided in the Courts of England and Wales will reach levels seen in the USA, although, as the writer understands the law in the USA, the Courts in the USA do not order one party to pay another’s legal costs. In the Courts of England and Wales, the usual order is that the losing party pays the winning party’s costs in addition to the damages awarded.
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Kevin Modiri is a Partner in our expert Dispute Resolution team.
If you have any questions concerning the subjects discussed in this article, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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