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Changes to the law of defamation

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Posted by Daniel Jennings on 03 March 2014

Daniel Jennings - Defamation Disputes Lawyer
Daniel Jennings Partner

The Defamation Act 2013 (“the 2013 Act”) received Royal Assent on 25 April 2013 and will overhaul the libel laws in England and Wales with a view to creating a more balanced and fair law.

The new laws contained within the 2013 Act protect freedom of expression and encourage open and honest public debate whilst protecting those who feel their reputations have been unjustly defamed.  The new laws are not yet in force.  Whilst it was suggested that these would be in force by the end of 2013, this is now likely to be April 2014.

Summary of Key Changes

Introduction of the requirement of “serious harm”/”serious financial loss” (Section 1)

In order for a statement to be defamatory, the publication will have to have caused or be likely to cause serious harm to the claimant’s reputation. In respect of a body that trades for profit, that body will need to show that the publication will have caused or is likely to cause serious financial loss.

It is not thought that the introduction of the requirement of serious harm will greatly affected individuals as most claimants who bring an action will be doing so because the defamatory statement is likely to cause serious harm to their reputation.  However, in respect of bodies which trade for profit, it is thought that the need to show “serious financial loss” may make it difficult for them to sue for defamation. Therefore, it may be found that more individuals associated with the company will bring an action if they can argue that a publication identified them and caused them “serious harm”.

New defences of truth, honest opinion and publication on a matter of public interest (Sections 2, 3 & 4)

The statutory defence of truth replaces the old common law defence of justification and will apply if a defendant can show that the imputation conveyed by the statement complained of is substantially true.

The defence of honest opinion replaces the old common law defence of fair comment and will apply if a defendant can meet the following three conditions but it does not include a requirement for the opinion to be on a matter of public interest:

  • the statement complained of was a statement of opinion;
  • the statement complained of indicated, where in general or specific terms, the basis of the opinion; and
  • that an honest person could have held the opinion on the basis of:

 

  1. any fact which existed at the time the statement complained of was published;
  2. anything asserted to be a fact in a privileged statement published before the statement complained of.

 

The defence of publication on a matter of public interest replaces the common law defence known as the Reynolds defence and will apply if the defendant can show that:

  • the statement complained of was, or formed part of, a statement on a matter of public interest; and
  • the defendant reasonably believed that publishing the statement complained of was in the public interest.

In respect of this, it will come down to a defendant’s reasonable belief and a Court will take into account all the circumstances of the case and will make an allowance for editorial judgment as I considers appropriate.

New process for dealing with operators of websites (Section 5)

If an action is brought against the operator of a website in relation to a statement posted on the website, the operator will have a defence if they can show that it was not the operator that posted the statement on the website. This defence can be defeated by the claimant if they can show that:

  • it was not possible for the claimant to identify the person who posted the statement;
  • the claimant gave the operator a notice of complaint in relation to the statement; and
  • the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.

In order to be able to use this defence, an operator of a website will have to respond promptly to a valid Notice of Complaint. Under the recently published draft Defamation (Operators of Websites) Regulations 2013 (“the Regulations”), which are currently before Parliament, a website operator will have two days (subject to the courts’ discretion) to notify the author(s) of the comments which are being complained of.

Further information in respect of the Regulations can be found at in this article.

Protection of peer-reviewed statements and additions to absolute and qualified privilege (Sections 6 and 7)

Section 6 provides protection for scientists or academic who publish in a peer-reviewed statement and sets out certain conditions which detail when the publication of such a statement will be privileged.

Section 7 updates and extends the circumstances in which a defence of absolute or qualified privilege will be available.

Establishment of a single publication rule (Section 8)

This section will apply if a person:

  • publishes a statement to the public (“the first publication”); and
  • subsequently publishes (whether or not to the public) that statement or a statement which is substantially the same.

The introduction of this will mean that a claimant is prevented from bringing an action in relation to the publication of the same material by the same publisher after the expiry of one year from the date of the first publication. The only circumstances in which a claimant would be allowed to bring a new claim is if the original material is published by a new publisher or is the manner of the publication is materially different to the first publication.

Limitation of the English’s court’s jurisdiction in respect of an action against a person not domiciled in the UK, another Member State or a state which is a contracting party to the Lugano Convention (Section 9)

A court will have to be satisfied that of all the places in which the defamatory statement has been published, England and Wales is the most appropriate place in which to bring an action. The aim of this is to address “libel tourism” and to seek to prevent claims being brought in England and Wales when it is not the most appropriate place to hear the claim.

Protection for persons who are not the author, editor or publisher (Section 10)

A court will not have the jurisdiction to hear and determine a defamation claim which is brought against a person who is not the author, editor or publisher of the statement except where it is not reasonably practicable to bring a claim against the author, editor or publisher.

Trial by jury (Section 11) This section prevents trial by jury for defamation cases unless the court considers otherwise.

Publication of judgment and removal of statement (Sections 12 and 13)

Section 12 allows the court to order the defendant to publish a summary of its judgment if the claimant is successful.  The parties are to agree the wording of the summary and the time, manner, form and place of its publication. If the parties cannot agree the wording, this will be settled by the Court. If the parties cannot agree the time, manner, form and place of publication, the court will provide directions.

Section 13 allows the court to order the operator of a website to remove a defamatory statement or any person who is not the author, editor or publisher of the defamatory statement to stop distributing, selling or exhibiting material containing the statement.

At this stage, it is yet to be seen how these changes are going to affect defamation cases and a lot will depend upon the interpretation given to the above sections by the judges. Until these new laws have come into force, any claims for defamation will continue to be brought under the old law.

About the author

Daniel advises clients on all aspects of commercial litigation and dispute resolution.

Daniel Jennings

Daniel advises clients on all aspects of commercial litigation and dispute resolution.

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