t a time when most business sectors are suffering from the economic downturn, the last thing that a publisher wants is to put his hand in his pocket over a stupid mistake. Whether it is publishing something defamatory, a breach of copyright or falling foul of the growing trend in privacy actions, the end result is normally at best a hefty legal bill. At worst, it can involve a sizeable payment in damages. Global recession isn't a defence when it comes to the court's assessment of damages.
There is always a tendency during downturn for publishers to become risk-averse. What previously may have involved a view being taken as to the likelihood of being sued over a particular article, is now consigned to the philosophy of 'it's just not worth the risk'. It's what is known as the chilling effect on freedom of expression. But that approach has its downside. The bottom line for some publications is simply that if they become more mundane, then they will no longer be attractive to their current readership. Sales are likely to fall. They certainly won't increase.
In practical terms there is no need to adopt such a policy. One of the slogans used by my firm is: 'Any fool can say that it is too risky to publish. The skill is to show the client how to make it possible.' And it is possible.
There is very little that can't be published provided appropriate checks are made. These include contacting individuals for comment; considering the seriousness of the allegation; weighing up the public interest; the source of the information; the steps to verify the information; the urgency of the matter and the tone of the article. Even if you publish something defamatory, the law still affords defences where correct journalistic practices were followed.
There are occasions where defamatory material is published. Getting advice on
how to best extract oneself from that situation is vital.
It used to be that the courts considered the primary place of publication to be the vital ingredient when it came to jurisdiction. In other words, if you published in Edinburgh to a UK readership then you would be sued in Edinburgh.
That has all changed with the internet. Any publisher with an online presence can be sued where the article is downloaded. That can even be in a different continent. In most cases it tends to be in London, where libel damages tend to be higher.
Not only that, but unlike their Scottish counterparts, English solicitors can offer Conditional Fee Arrangements. By doing this they are able to recover from the publisher double their costs by way of uplift in the event of success. That tends to equate to £800 per hour.
The law does allow the publisher to correct its error provided it is prepared to apologise early and pay costs. By proceeding down what is known as the 'offer of amends' route, the publisher is entitled to a discount in relation to any compensation that requires to be paid. In some cases, discounts of up to 50% have been granted by the courts.
The same discounts do not apply to the developing law of privacy. But thankfully to date the courts have not let awards run wild. There is little doubt that this will prove a growing field for litigation in Scotland.
Privacy involves a two-fold test. Was there a reasonable expectation of privacy? If there was, then did the public interest outweigh it? Each case is dependent on its own merits.
To date there has been no case in Scotland that has gone the distance so far as the assessment of damages is concerned, but in all likelihood comparison can be made with English cases, where with the exception of the highly publicised Max Moseley case, damages have tended to be set by the court at no greater than £10,000.
There are times when errors in what is published can be beyond a publisher's control. The author may simply have got some facts wrong. But there is one important resource over which any employer retains control - its employees. There are many who will argue that your most important resources are your employees.
However, in any downturn of business, redundancies do become an issue.
The problem is that if experienced members of staff leave, then it is vital to seek protection from that employee using contacts in any future job that they may take - particularly in advertising. It is therefore essential to have in place employment contracts, and indeed restrictive covenants contained within employment contracts that deal with this situation.
Of course, restrictive covenants need to be valid. A publisher can't stop a former employee from working in their industry, but they can stop them from picking up the phone to those people who they were dealing with when they were in their previous job, to solicit the same business. The problem is that if the restrictive covenant clause is badly drafted, the courts will simply not enforce it.
One clever mechanism employed is to put a clause in the employment contract that forces the employee to show the restrictive covenant to their new employer. By doing that, it allows for legal action to be taken against not only the former employee for breaching the covenant but also their new employer, (who will almost certainly be a competitor), if they choose to publish material which has been obtained in breach of the covenant.
Times may be tough for the industry but there is no reason why publishers should cut back for fear of legal reprisals.
Being fully informed of the law before publication remains best practice.