Government proposals on costs protection in defamation and privacy could encourage vexatious libel claims with serious consequences for small online publishers, specialist media lawyers claimed today. 

Media firm Wiggin was responding to a Ministry of Justice consultation on proposals to offer one party protection in relation to their liability for the other side’s costs in defamation cases. This would remove the requirement for a losing claimant of modest means to pay the respondent’s costs.

A survey of public attitudes carried out for the firm found that the percentage of people who would consider taking legal action if an offensive comment was posted about them online had fallen from 60% to 39% over the past year. However a quarter of people who said they would not take legal action if they were defamed online would ‘have a go’ if the cost barrier was removed.

When asked about the fairness of the current system, whereby the losing side may have to pay both sides’ costs:

  • 60% said the current system is fair or they are not sure; 40% said it is unfair.
  • 41% of people did not know that under the current system, if they brought a claim and lost they might have to pay both sides’ costs.

The poll questioned 2,018 adults between 18-20 October.

Caroline Kean, Wiggin partner, said: ‘Our opinion poll indicates that the government’s proposals could lead to a potential increase in unmeritorious and even vexatious claims being brought. We have found that a significant proportion of people who would not have otherwise brought a claim, would be willing to "have a go" because the risk of having to pay both sides’ costs is removed.

‘The impact of this, on small publishers in particular but also the already overstretched courts system, could be devastating.'

The MoJ consultation closes on 8 November.