The government has recently consulted in relation to its draft Defamation Bill (the “Bill”). A refined Bill is expected to be published this autumn. The foreword to the Bill suggests that the main driver for reform is “mounting concern over the past few years that our defamation laws are not striking the right balance, but rather are having a chilling effect on freedom of speech.” With that in mind, what changes would the Bill introduce if it became law?
Measures to tackle frivolous claims
The Bill contains two provisions aimed at dealing with certain types of frivolous claims.
The first is aimed at preventing claimants from being able to bring proceedings where, even though a defamatory statement has been published, it is trifling and has not harmed the claimant’s reputation in any serious way. In order to deal with these trivial claims, the Bill introduces a requirement that a claim for defamation will only be actionable if it has caused, or is likely to cause, substantial harm to the reputation of the claimant.
The second provision aims to deal with the perceived problem of “libel tourism”. That is, where cases with a tenuous link to England and Wales are brought in this jurisdiction because the libel laws are more favourable to claimants in this jurisdiction than in some other country. An example of this is given by the case of Jameel v Dow Jones, where the claimant brought proceedings against Dow Jones in the UK for an article published on the online version of the Wall Street Journal, despite only 5 people reading that article in the UK (3 of whom were, as the Court put it, in the “claimant’s camp”).
There are already EU Regulations which deal with issues of jurisdiction within the EU and so the Bill leaves these undisturbed. However, where the defendant is based outside the EU, the Bill proposes that the Courts of England and Wales will not have jurisdiction to hear a case unless it is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate jurisdiction in which to bring an action in respect of the statement. In practice, what this will mean is that where a statement has been published in the UK and overseas, the court will have to look at the global picture to determine whether it is appropriate for the case to proceed in the UK. To take a crude example, if a statement was read 100 times in England and 100,000 times in Canada, then that would suggest that Canada is the more appropriate forum.
A new defence of responsible publication on matters of public interest
The Bill introduces a new statutory defence of responsible publication on a matter of public interest. This is based on a near identical existing common law defence set out in the case of Reynolds v Times Newspapers. In fact, the statutory defence will operate alongside its common law equivalent, thus leaving this as fertile ground for litigants to argue about the differences, resulting in increased costs and uncertainty.
The Reynolds defence has long been used by journalists who claim protection by showing they have acted responsibly in publishing. The statutory defence similarly will operate where a defendant can show that the statement complained of is, or forms part of, a statement on a matter of public interest and that he or she acted responsibly in publishing the statement. The Bill contains some guidance on factors which can be taken into account to determine whether the defendant acted responsibly, such as: the seriousness of the defamation, what the defendant knew about the reliability of the information, whether the defendant sought the claimant’s views on the statement before publishing, whether the publication included an account of any views expressed by the claimant and what steps the defendant took to verify the accuracy of the statement.
Codification of existing defences
The Bill replaces some of the old common law defences with new statutory defences, although the substance remains much the same. Accordingly:
- the old common law defence of justification is replaced by a statutory defence of truth. This provides a defence to an action for defamation if the defendant can show that the imputation conveyed by the statement complained of is substantially true.
- the old common law defence of fair comment (latterly described by the courts as “honest comment”) is replaced by a statutory defence of honest opinion. This provides a defence where the defendant can show that: (a) the statement complained of is a statement of opinion, (b) the opinion is on a matter of public interest and (c) an honest person could have held that opinion on the basis of (i) facts which existed at the time the statement complained of was published or else (ii) a privileged statement which was published before the statement complained of. The defence will fail if the claimant can show that the defendant did not honestly hold the opinion. Similarly, if the statement was made by another person and then published by the defendant (as with a newspaper reporting on a comment by a third party) then the defence will fail if the claimant can show that the defendant knew or ought to have known that the original author did not hold the opinion.
Single publication rule – Libel on the internet
It is a principle of the defamation laws in England and Wales that each publication of a defamatory statement gives rise to a separate cause of action, which is subject to its own 1 year limitation period. This is known as the multiple publication rule.
The multiple publication rule has caused serious problems for companies such as website operators, where there is a new right to sue (i.e. the 1 year clock starts all over again) each time there is a “hit” on a webpage which contains a defamatory statement. This means that website operators may potentially be liable for defamatory statements well after the date the defamatory statement first appeared on the website.
In order to deal with this issue, the Bill proposes to replace the multiple publication rule with a single publication rule. This will prevent a claim being brought in relation to publication of the same (or substantially the same) material by the same publisher one year from the date the material was first published to the public or a section of the public. So, if the Guardian publishes a defamatory article on its website on 1 June 2011, then no action can be brought in relation to that article following 1 June 2012, even if it remains accessible in the website archives after that date. The only exception to this will be where the manner of the subsequent publication is materially different from the manner of the first publication. This, in itself, is up for debate, but one can see it operating where the initial publication was somewhere deep within the Guardian website and subsequent publication was on the front page of the Guardian newspaper.
This proposed change will be welcomed by website operators. However, there may yet be more good news. In conjunction with the Bill, the government is consulting on other potential changes to the law of defamation. One of these issues concerns liability for publication of statements on the internet more generally. In particular, the issue as to whether internet service providers and other secondary publishers ought to be given more protection against claims arising out of defamatory statements made by third parties e.g. where a third party publishes a defamatory statement on a website bulletin board. It remains to be seen whether such proposals will find their way into the Bill this autumn.
In addition to the above, the Bill also suggests changing the way defamation cases are dealt with by the Courts so that there is no longer a right for the parties to choose to have their case tried by a jury. Instead, if the Bill becomes law, defamation cases will now be dealt with by a judge alone unless the court orders otherwise. In addition to this, the Bill also proposes various changes to the defence of privilege, which are fairly technical and so beyond the scope of this summary as are some other technical matters dealt with in the Bill.
The Bill was introduced to tackle the perception that the defamation laws of England and Wales were becoming too claimant-friendly and were responsible for eroding away our freedom of expression. With that in mind, it is difficult to see how the Bill will change this. There are new statutory measures to tackle frivolous claims, but in reality these protections already exist and it is difficult to see what extra protection the Bill will provide.
The same can be said for the more substantive legal changes. The new defence of responsible publication is nearly identical to the current common law defence and the codification of the current laws of justification and honest comment similarly lack invention. It remains to be seen whether the ongoing consultation and parliamentary scrutiny will serve to do more to dilute the rights of claimants, or to simplify an area of the law seen by many as far too complicated.
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