Pre-Action Protocol for Media and Communications Claims

If you are preparing to sue — or have just been threatened with a lawsuit — over a publication in England and Wales, the Pre-Action Protocol for Media and Communications Claims sets out what each side must do before proceedings are issued. In short: the claimant sends a detailed Letter of Claim, the defendant responds within 14 days, both sides genuinely consider settlement or alternative dispute resolution, and everyone moves quickly because defamation and malicious falsehood claims have only a one-year limitation period. The protocol sits under Civil Procedure Rule 53.1, and the court will look at how well you followed it when it decides who pays the costs.¹

Which Disputes the Protocol Covers

The protocol applies to claims arising from publication or threatened publication through print, broadcast, online platforms, social media, or speech. The categories are:

Defamation — libel (written) and slander (spoken).
Malicious falsehood, where a false statement was published with malice and caused financial loss.
Misuse of private information, where information the claimant could reasonably expect to keep private was disclosed.
Breach of confidence.
Data protection claims under the Data Protection Act 2018 or the UK GDPR involving media or communications activity.
Harassment carried out through a publication.¹

If your dispute is in one of these categories, the protocol applies to you.

The One-Year Clock on Defamation Claims

Defamation and malicious falsehood claims must be brought within one year of publication. The protocol itself flags that time is frequently “of the essence” in these disputes.¹

That window is tight once you factor in the pre-action steps. A claimant who discovers an article ten months after it ran has very little time to draft the Letter of Claim, wait for the response, attempt some form of settlement, and still issue proceedings before the deadline. Start the protocol process as early as possible rather than hoping the publication fades on its own.

Misuse of private information and breach of confidence claims generally follow the standard six-year period. Data protection claims under the Data Protection Act 2018 may have their own statutory deadlines depending on the nature of the breach.

What the Letter of Claim Must Say

The claimant must notify the defendant in writing at the earliest reasonable opportunity. Every Letter of Claim includes four baseline elements:

The claimant’s full name.
The basis for the remedies sought — the nature of the claim and the legal grounds.
Any facts explaining why England and Wales is the appropriate forum.
Details of how the claim is being funded, such as a conditional fee agreement or litigation funding.¹

What else goes into the letter depends on the type of claim.

Defamation, Slander, and Malicious Falsehood

Identify the specific publication, the statement complained of, and the date it appeared. Enclose a copy or transcript where possible. Explain the meaning you say the statement carried and why it is factually inaccurate or constitutes unsupportable comment, with enough detail for the defendant to understand the complaint. For slander, describe when and where the words were spoken and the circumstances, as far as you know them. A malicious falsehood letter must also outline the claimant’s case on malice.¹

Privacy and Breach of Confidence

Describe the information, or categories of information, that you say is confidential or subject to a reasonable expectation of privacy. Identify the publication or proposed publication containing that information, and explain the circumstances that give rise to the confidentiality or privacy expectation.

Data Protection

Outline the nature of the alleged breach and explain how the processing of personal data violated the Data Protection Act 2018 or the UK GDPR.

Serious Harm: The Defamation Gatekeeper

A defamation claim cannot proceed unless the claimant can show the statement caused or is likely to cause serious harm to their reputation. Section 1 of the Defamation Act 2013 introduced this threshold to filter out trivial complaints.²

The bar is higher for businesses. A body that trades for profit must show the publication caused or is likely to cause serious financial loss — not reputational damage in the abstract, but actual or likely monetary consequences such as lost contracts or declining revenue.

The Letter of Claim in a defamation case must address this directly, explaining how and why the publication caused or is likely to cause serious harm. For a business claimant, give whatever details you have on the nature and value of the financial loss. Skipping this at the pre-action stage signals that the claim may not hold up under scrutiny later.¹

The Defendant’s Response: 14 Days

The defendant should reply as soon as reasonably possible. If a full response cannot be given within 14 days of receiving the Letter of Claim, the defendant must say so and specify when they will reply. There is no automatic extension to 28 days; 14 days is the expected baseline.¹

The response must cover:

Whether the claim is accepted in whole, in part, requires more information, or is rejected.
If accepted in whole or part, what remedies are being offered.
If rejected, the reasons, including any statutory exemptions or facts supporting a substantive defence.
In defamation and malicious falsehood cases, what meaning the defendant contends the publication carried, if any.
If the claimant has indicated they may bring the claim anonymously, whether the defendant accepts that and why.

The response locks in the defendant’s position. A defendant who later changes legal strategy without good reason may face scepticism from the court about their pre-action conduct.

Offer of Amends in Defamation Cases

Defendants in defamation cases have a specific statutory tool. Under sections 2 to 4 of the Defamation Act 1996, a defendant can make a formal offer of amends — publishing an apology or correction, and potentially paying damages and costs.¹

If the claimant accepts, the matter is settled without proceedings. If the claimant rejects a reasonable offer and later proceeds to trial, the defendant can rely on the rejection as a defence, which substantially limits the damages a court is likely to award. It is worth considering seriously, and early, before positions harden.

Alternative Dispute Resolution

The protocol says court proceedings should be a last resort. Both sides should consider some form of alternative dispute resolution and try to agree on which to use. The main options are:

Without prejudice discussions — direct negotiations that cannot later be used as evidence.
Mediation, with an independent neutral facilitating.
Early neutral evaluation, where an experienced defamation lawyer or subject-matter expert gives an informed opinion on the likely outcome.
Referral to a press regulator, or to an arbitration scheme run by one, for complaints about editorial content.¹

ADR is not compulsory. But the court expects you to have genuinely considered it. A party that refuses to engage, or simply ignores an invitation, risks the court treating that refusal as unreasonable and ordering them to pay additional costs — even if they go on to win the case on the merits. Winning at trial does not guarantee recovering your costs if the court decides you stonewalled a reasonable settlement process.

What Happens If You Ignore the Protocol

Judges in England and Wales treat the protocol as the normal, reasonable approach to a media and communications dispute, and they expect compliance from both sides before proceedings start. If the matter does reach litigation, the court will look at how closely each party followed the protocol when it decides costs.¹

A claimant who issues proceedings without a proper Letter of Claim, or a defendant who refuses to engage meaningfully with the response process, can expect the court to react badly. Consequences range from unfavourable costs orders to negative inferences about the party’s litigation conduct.

Proportionality runs through all of this. The effort you put into pre-action steps should match the value and complexity of the claim. A dispute over a social media post seen by a handful of people does not call for the same formality as a front-page newspaper allegation. Even so, going through the protocol’s steps in a small case demonstrates good faith and protects your position on costs if a judge ends up reviewing what happened.

If You Are Representing Yourself

If you do not have a solicitor, you should still comply with the protocol as far as reasonably possible. If one side realises the other is unrepresented, they should send a copy of the protocol to the litigant in person at the earliest opportunity.¹

The protocol does not lower its standards for unrepresented parties, but courts take a pragmatic view of whether a litigant in person has done their best. A well-structured Letter of Claim that covers the key requirements will carry weight even without the polish of a media law specialist.

1
Justice UK. Pre-Action Protocol for Media and Communications Claims
2
Legislation.gov.uk. Defamation Act 2013 – Serious Harm