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Can you damage a reputation in 140 characters?

A local councillor in South Wales became the subject of the first defamation case brought in the UK involving a comment made on Twitter. The settlement, which included costs being paid by the defendant of almost twenty times the value of the damages paid, also highlighted the topical and controversial issue of CFAs and success fees in the context of defamation claims.

The defendant, Caerphilly Plaid Cymru councillor Colin Elsbury, had mistakenly said in a tweet on local polling day in June 2009 that another councillor, Eddie Talbot, had needed to be removed from the polling station by the police. Although he corrected his mistake in another tweet over a week later, Councillor Talbot brought an action against Mr Elsbury for defamation. After a hearing at the High Court in Cardiff, a settlement was reached.

As part of the settlement, Mr Elsbury agreed to pay damages of £3,000, and agreed to give Mr Talbot a written apology and to reactivate his Twitter page to publish the apology. Mr Elsbury also agreed to pay a figure reported to be close to £50,000 in respect of Mr Talbot’s costs, a significant portion of which was attributable to a large success fee contained within the no-win, no-fee conditional fee agreement (“CFA”) in place between Mr Elsbury and his solicitors.

CFAs have recently been criticised by the European Court of Human Rights (“ECHR”) in MGN Limited v United Kingdom, where the ECHR held that the requirement for the losing party in defamation litigation to bear the cost of a success fee was disproportionate and a violation of the right to freedom of expression enshrined in Article 10 of the European Convention on Human Rights.

However, the recoverability of CFA success fees was already under threat in the UK before the ECHR’s decision as a result of the Jackson costs review, which was recently the subject of consultation. Further, the recently published Government consultation paper on the draft Defamation Bill refers to the issue of CFAs and the possible abolition of success fees. The draft Bill itself also attempts to deal (albeit indirectly) with the issue of reducing costs associated with defamation proceedings, by attempting to clarify the law in this area, and thereby reduce the length of, and necessity for, proceedings.

All individuals and companies who are embracing new forms of social media should be aware that despite the ease and informality of Facebook and Twitter, the law of defamation, and the risks of extremely costly and time-consuming proceedings being brought, still apply. A throw-away 140 character message might actually have a much more serious consequence than the author could ever have imagined.

This article first appeared in Law-Now, CMS Cameron McKenna's free online information service, and has been reproduced with their permission. For more information about Law-Now, please go to www.law-now.com

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