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A B C D E F G H I J K L M N O P R S T V W Y

The new law of defamation: a sensible balance or step back?

The new law of defamation: a sensible balance or step back?

Monday 23rd December 2013

On 1 January 2014 new legislation comes into force that will significantly reform the law of defamation.  The existing law in this area has been developed by the courts over hundreds of years and has been periodically supplemented by statute.  The new Defamation Act 2013 represents the latest attempt by Parliament to strike a balance between the right to freedom of expression and the protection of reputation.  In this article, we provide an overview of new provisions and assess whether they achieve the right balance or represent a bit of a blunder.

Requirement of ‘serious harm’

In an attempt to discourage trivial claims, section 1 of the Act introduces a new threshold test in order for a statement to be defamatory.  It provides that a statement will not be defamatory unless its publication has caused (or is likely to cause) ‘serious harm’ to the reputation of the claimant.  What amounts to serious harm will fall to be decided on a case-by-case basis; however, the Act requires a business (defined as a ‘body that trades for profit’) to show that the statement has caused (or is likely to cause) ‘serious financial loss’.  The new test certainly represents a higher hurdle than the current law and if a claimant fails to get over it, the claim will fail.  As such, we anticipate that the test of serious harm will be a key battleground at the early stage of many libel claims.  It remains to be seen how the courts will interpret the new test and, in particular, what type (and degree) of evidence will be required in order for it to be satisfied.

It is important to note that section 1 is a restriction, rather than a definition.  Over the years there have been numerous attempts by the courts to define what is defamatory and, in our view, the Act represents a missed opportunity to provide clarity as to precisely what fundamental elements are required in order to establish a claim.  The Act essentially provides one piece of the jigsaw but we seemingly must rely on other elements of the existing case law in order to decide whether or not a statement is defamatory.  This piecemeal approach hardly increases accessibility to the law and, if anything, creates further complexity and scope for legal debate.

New statutory defences

The Act introduces a number of new statutory defences:

• Defence of ‘truth’

Section 2 of the Act creates a new defence of ‘truth’ that will replace the existing defence of ‘justification’. It will apply if the defendant can demonstrate that the imputation conveyed by the statement complained of is substantially true. The stated aim of the new defence is to ‘broadly to reflect the current law while simplifying and clarifying certain elements’.  In contrast to the ‘serious harm’ test, accessibility has undoubtedly been improved in this area – the defence is now set out in a few concise of paragraphs of plain English, as opposed to many pages of law reports.  However, we question whether the simple, user-friendly, words in Section 2 will be able to deal with the numerous legal and practical issues that commonly arise during the course of disputes over the truth of defamatory statements.

• Defence of ‘honest opinion’

This new defence is contained in Section 3 and will replace the existing defence of ‘fair comment’. A defendant will have to satisfy the following three conditions in order to rely on the defence of honest opinion:-

- The statement must be an expression of opinion and not an assertion of fact.
- The statement must indicate the basis of the opinion.
- The opinion must be one that an honest person could have held on the basis of a fact which existed at the time the statement was published or a privileged statement published before the statement in question.

In general terms the new defence closely resembles the existing law but, if anything, it is wider in certain respects – for example, there is no longer a requirement for the opinion to be on a matter of ‘public interest’.  As with the defence of ‘truth’, accessibility is improved but, again, the Act will abolish a well established and uncontroversial body of existing law and it remains to be seen whether the new provisions will create more problems than they will solve.

• Defence of ‘publication on matter of public interest’

Section 4 of the Act will bring in a new defence for those who are publishing material which they reasonably believe is in the public interest.  It replaces the existing defence that lawyers refer to as the ‘Reynolds defence’, which it is intended to reflect.  Nevertheless, the new defence seemingly seeks to strengthen freedom of speech and obliges the court to ‘have regard to all the circumstances of the case’ and to ‘make such allowance for editorial judgement as it considers appropriate’ in determining whether a publication was in the public interest.

• Operators of websites

An entirely new defence is created by Section 5 of the Act for operators of websites who can show that they did not ‘post’ the statement complained of.  The defence is, however, subject to a number of conditions and section 5(3) provides that it will be defeated if the claimant shows that:-

- It was not possible for the claimant to identify the person who ‘posted’ the statement;
- The claimant gave the website operator a notice of complaint in relation to the statement; and
- The website operator failed to respond to respond to the notice of complaint in accordance with any provision contained in accompanying regulations.

The defence will also fail, even in respect of an identifiable author, if the claimant is able to establish that the website operator acted with malice in relation to the posting of the statement.

The new law and regulations do not affect the existing defences available to website operators, which already provide sufficient protection in the large majority of cases.  Equally, the changes fall short of providing claimants with a guaranteed route to either removal of the offending material or contact details for the author.

• Peer-reviewed statements

Section 6 of the Act creates a new defence which provides protection for scientists and academics publishing in peer-reviewed journals.  The publication of a statement in such a journal is privileged, as long as certain conditions are met.

• Absolute and qualified privilege

Section 7 of the Act merely updates and extends the circumstances in which the existing legal defences of absolute and qualified privilege are available, rather than providing a more comprehensive overhaul.

Single publication rule

Under the existing law of libel, every publication of defamatory material gives rise to a fresh cause of action which is subject to its own limitation period (the period of time in which court action must be commenced).  The Act establishes a new ‘single publication rule’, aimed at reducing the number of libel actions brought in respect of historic publications.  The rule provides that a claimant will be prevented from bringing a claim in relation to publication of the same material by the same publisher after the expiry of a one-year limitation period from the date of the first publication of that material to the public, or a section of the public.  However, it does not apply where the subsequent statement is published by somebody else or if the manner of publication was materially different from the original.  It will be interesting to see how the ‘single publication rule’ works in practice but claimants will need to keep a particularly close eye on time limits in cases involving any republication to reduce the risk of their claim being ‘time-barred’.

Libel tourism

One of the stated aims of the Act is to address the issue of ‘libel tourism’ (a term which is used to apply where cases with a tenuous link to England and Wales are brought in this jurisdiction).  The Act introduces a new test for acceptance of jurisdiction in defamation cases by courts in England and Wales.  It applies when a defamation action is brought against a person who is not domiciled in the UK, an EU member state or a state which is a party to the Lugano Convention.  The new test provides that a court does not have jurisdiction to hear and determine such cases, unless it is satisfied that, of all the places in the world in which the statement complained of has been published, this jurisdiction is ‘clearly the most appropriate place in which to bring an action in respect of the statement’.  This means that in cases where a statement has been published in this jurisdiction and also abroad the court will be required to consider the overall global picture to consider where it would be most appropriate for a claim to be heard. 

Secondary publishers

The new Act also limits the circumstances in which an action for defamation can be brought against secondary publishers of an allegedly defamatory statement, such as booksellers.  Indeed, section 10 of the Act provides that the court will no longer be able to hear an action against them, unless it is not reasonably practicable for an action to be brought against the author, editor or publisher.

Judge or jury

Section 11 of the Act removes the existing presumption that all defamation cases are to be tried by jury.  The existing law provides for a right of trial with a jury on the application of any party, ‘unless the court considers that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury’.  The removal of presumption means that defamation cases will be tried without a jury unless the court orders otherwise.  We anticipate that the changes will mean that trial by jury will be a thing of the past and will be a very rare occurrence in future libel claims.  The changes are unfortunately not accompanied by any guidance or commentary as to when it might be appropriate for a claim to be tried by jury and this may give rise to potential legal uncertainty and litigation.

Publication of judgments

Many of the new measures outlined above help to support freedom of expression; however, one change that is certainly geared towards trying to provide an effective remedy for those defamed is the introduction of Section 12 of the Act.  This gives the court the power to order that a summary of its judgment to be published.  Under the new laws, the wording of any summary and the time, manner, form and place of its publication will be matters for the parties to agree.  If the parties are unable to agree, the court will give directions.  We anticipate that Section 12 orders will become standard in the majority of successful defamation actions.

A sensible balance or step back?

So, will the Act strike the right balance between the right to freedom of expression and the protection of reputation?  The answer, it seems, will hinge on the court’s interpretation and application of the new provisions of the Act which are by and large drafted in a simple and concise manner but may struggle to cope with the serious, difficult and complex practical issues that commonly arise in libel disputes. This is somewhat ironic given Parliament’s attempt at reforming many of the existing libel laws that have been developed by the courts in order to strike the right balance.  In certain respects the Act interferes with a significant amount of existing libel law that was relatively settled, clear and uncontroversial.  The upshot is likely to be that litigation increases, at least in the short term, as the new law is tested and the case law is re-established. 

Author: Philip Steele

For further information please contact:

Deborah Ascott-Jones, Director of Business Development & Marketing
Brabners LLP
DD (M/c) 0161 836 8899
DD (Lpool) 0151 600 3021
Mobile 07736 792332

Anne Griffiths, PR Manager
Brabners LLP
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