Defamation Bill Update

The law on defamation (which protects the reputation of an individual or organisation) has been largely developed over the years through case law, supplemented by the Defamation Acts 1952 and 1996.

Defamation law in the UK has been widely criticised, and the current Bill aims to reform the law in England and Wales to ensure that a fair balance is struck between the competing rights of freedom of expression and protection of reputation.

Here is a brief summary of the main proposed changes (the Bill can be accessed here):

Serious harm – clause 1

This new provision provides that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the claimant’s reputation. It is intended that this clause will raise the bar for bringing a claim so that only cases involving serious harm are brought and trivial claims are excluded. The current test is set out in Thornton v Telegraph Media Group, which relates to the seriousness of the defamatory words. Clause 1 seems to be more focused on the impact of the statement, but it is unclear whether the effect of this clause will differ much from the current test.

Main defences – clauses 2–4

As far as the main defences are concerned, “justification” will be known as “truth”; “honest comment” will be known as “honest opinion”, and the “Reynolds defence” will be replaced by a statutory defence, “responsible publication on matter of public interest”.

Defence for website operators – clause 5

Clause 5 introduces a new defence for “operators of a website” (which is not currently defined) if they can prove that they did not post the statement complained of on their website. The defence will be defeated if the claimant is able to show that: (1) the claimant can’t identify the person who posted the statement,  (2) the claimant notified the operator of the offending statement and (3) the operator failed to respond to the notice in accordance with the regulations (which are likely to be made under a separate statutory instrument).

This defence significantly broadens protection for website operators. It is not clear how far the claimant will have to go to identify the author of the statement, and whether it will be necessary for the claimant to seek a court order requiring disclosure of the author’s identity, which would be time-consuming and costly. Where an author is identifiable, complainants will have to pursue the author directly.

Peer-reviewed statement in scientific or academic journal – clause 6

This creates a new defence for peer-reviewed material in scientific or academic journals. The defence applies where the statement relates to a scientific or academic matter and was reviewed by the journal’s editor and at least one other person who has expertise in the relevant field, prior to publication. It is not clear whether the person with relevant expertise actually has to agree with the statement, but this is probably unlikely.

Single publication rule – clause 8

Under the current law, claimants must bring a claim for defamation within one year of publication. This means that every time a defamatory statement is accessed online the clock is restarted. The proposed rule would mean that the one year period would start to run from the date the content is first published, unless the further publication is materially different from the manner of the first publication. In deciding this issue, the court is likely to consider the level of prominence given to a statement and the extent of the subsequent publication.

The rule only applies to the subsequent publication of the same material by the same publisher.

The court will still have discretion to extend the one year limitation period.

Jurisdiction – clause 9

The court will only have jurisdiction to hear a defamation claim where the defendant is domiciled either in the UK, an EU member state, or another state which is a contracting party to the Lugano Convention (i.e. Iceland, Norway, Denmark and Switzerland), unless it is satisfied that, of all the places in the world in which the statement has been published, England and Wales is clearly the most appropriate place in which to bring proceedings.

When is the Bill likely to become law?

The Bill is currently making its way through the House of Lords and is subject to further amendments.

The cost of libel proceedings has been one of the biggest concerns, especially in light of the Legal Aid, Sentencing and Punishment of Offenders Act which (when it comes into force, currently due in April 2013) will abolish the recoverability of success fees and After the Event insurance premiums used in “no win, no fee” arrangements. Lord McNally has requested a report on the effect this will have on less well-off parties, which “will allow, if appropriate any rule changes in time for the Defamation Bill coming into effect.” The report is due by March 2013 so it is unlikely that the Bill will become law before spring/summer 2013.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.