Queen's Speech introduces new Defamation Bill
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Queen's Speech introduces new Defamation Bill: Good news for websites; bad news for libel tourists
On Wednesday, the Queen announced that the Government will be pressing ahead with reforms to the law of defamation in this year's legislative agenda.
The proposed reforms are aimed at striking a better balance between the protection of reputation and freedom of speech. A draft Defamation Bill was published yesterday along with explanatory notes:
The Defamation Bill follows the publication last year of a draft Bill and a consultation process (in relation to which Fieldfisher partner Colin Gibson prepared the response of the London Solicitors Litigation Association). Much of the basic content has been carried forward from the draft Bill (see our July 2011 commentary on the draft Bill). The following key aims remain in the Bill:
- The Bill proposes 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;
- The Bill proposes to translate into statute the existing common law defences of justification, fair/honest comment and Reynolds qualified privilege. These statutory defences will replace the common law defences and be renamed, in the process, "truth", "honest opinion" and "responsible publication on a matter of public interest";
- The Bill aims to eliminate libel tourism. The intention is to prevent the commencement of claims in England and Wales that have little connection with the jurisdiction where it appears that the claim is being made here purely because our libel laws are perceived to be "claimant-friendly";
- The Bill will prevent most defamation claims being brought more than one year after first publication. This marks a significant shift from the existing law in relation to internet publication where each new "hit" is taken as a new publication which resets the clock;
- The Bill will abolish the right to elect for trial by jury. Instead the presumption will be that defamation claims are to be tried by a judge alone unless the court orders otherwise;
- Other tidying provisions are also carried forward.
The most significant change from the draft Bill is the introduction of a new statutory defence for websites which host user generated content. In short, the defence will apply where the website operator can show that (a) it did not post the relevant statement on the website and (b) it gave certain information to the complainant (expected to include the identity of the actual poster) within a certain period. This element of the Bill will be expanded and clarified by separate regulations, which may also require website operators to take down the statement complained of in order to benefit from the defence. Because so much is left to the regulations there will be a big battle between competing interest groups as to their content.
We will be reporting on these changes and giving regular updates as well as hosting a seminar to explore the issues in more detail. In particular, Rhys Griffiths, who has been at the cutting edge of recent developments on the liability of websites which host user generated content, will speak on the impact of the Defamation Bill in this area. Colin Gibson will also consider the impact of the abolition of the common law defences.
In the meantime, for more information on our defamation expertise please click here.