Libel And Privacy In The Age Of New Media

NEW YORK Martin Sorrell’s case against two former business associates is generating headlines not only for its colorful details, but its legal novelty. Sorrell is suing for libel and invasion of privacy, and in an era when digital communications allows anyone to become a publisher, the case is believed to be one of the first high-profile actions based on blog postings and an e-mailed jpeg.

U.K. libel law, which generally requires a lower burden of plaintiff proof, is different from that in the U.S., which allows consideration for First-Amendment freedom of speech. What is the same in both countries, however, is that the means of delivering the claim doesn’t change basic tenents of libel.

“Fundamentally, the medium of expression is irrelevant to libel,” explained Rick Kurnit, a partner with Frankfurt Kurnit Klein & Selz, New York. Seth Berlin, a partner at Levine, Sullivan, Koch & Schulz, Washington, D.C., concurred: “As a general rule, the definition of libel is no different in this [online] medium, with one significant exception: If I operate a discussion board, [a plaintiff] can sue you for defamatory comments, but not me. I have statutory immunity.” Although Kurnit is not involved in Sorrell’s case, he has been following press accounts. He said the WPP CEO needs to prove that the defendants, executives at Italian media company FullSix, uttered a defamatory statement, that the statement was presented as fact, not opinion, that it was false and it damaged Sorrell’s reputation.

Because of the complexity of the evidence, the case in London High Court is not being heard by a jury. Justice David Eady—widely regarded as the country’s premier defamation and intellectual property authority—is overseeing the proceedings.

In London, Desmond Browne, QC, Sorrell’s barrister, and Andrew Caldecott, QC, representing defendants Marco Benatti and Marco Tinelli, don’t comment on trials before the judge, according to staffers at their law firms. Sorrell’s solicitors, Carter-Ruck, and those for the Italian executives, at Herbert Smith, didn’t return calls.

Browne has said in court that his client has “overwhelming” forensic evidence implicating Benatti and Tinelli. Sorrell is being joined in the invasion-of-privacy lawsuit by Daniela Weber, a protégé of Benatti, who is the COO of WPP Italy.

The irony of the case, occurring just as Wal-Mart is using e-mails in a countersuit against ex-marketing chief Julie Roehm, is not lost on some observers: “While advertising is being killed by the Internet, the people who make advertising are being killed by the Internet,” quipped a source.