The Defamation Bill – Comment before the second Reading

The Defamation Bill, which has cross-party support, is scheduled for a second reading on 12 June 2012. The Libel Reform Campaign has hailed its introduction as 'the first wholesale attempt at reform since 1843'. This article looks at the Bill in its current form and the reasons behind its introduction. The Bill has it is origins in a 2010 private member's bill introduced by the Liberal Democrat peer (and barrister) Lord Lester. The government launched a consultation process in March 2011 after publishing a draft bill. The revised bill follows the consideration of responses to the draft and the findings of a Joint Parliamentary Committee.

One of the stated purposes of the Bill is to codify some of the key case law that has built up in recent years in the field of defamation. This seems sensible, although the Bill does not seek to consolidate the existing defamation statutes. Mopping up the 1996 and what is left of the 1952 Defamation Acts and putting everything in one place would have made this area of law more accessible to the lay person.

In bringing the Bill the government says it "aims to shift the balance of the law towards freedom of expression...in a manner which will better match the preferences of society". This is a bold statement. Is the government really responding to the preferences of society or is it simply pandering to the demands of the media? The Bill presupposes that, as it stands, English defamation law gives too much protection to an individual's reputation over freedom of expression. Many lawyers and legal commentators simply do not accept this premise. Indeed, the ease at which reputations can be destroyed on the internet often without satisfactory recourse for those defamed, suggests that at present the law does not do enough to protect an individual's reputation.

The Bill attempts to tackle the liability of the new media - the internet intermediaries who make a sizable profit from publishing material (or facilitating publication) online. This is welcomed, not least because the current case law could be said to be ambiguous and we live in an age where irreparable harm can be done to an individual's reputation on the first page of search engine results. The law needs to keep up. We cannot have a situation where intermediaries are permitted to shelter anonymous or pseudoanonymous publishers who defame with impunity via their platforms. As it currently stands, it is this area of the Bill which needs the most work.

serious Harm

Clause 1 of the Bill imposes a threshold requirement for defamation claims. A statement will only be defamatory if its publication has caused or is likely to cause serious harm to the reputation of the claimant. It is unclear whether this simply a codification of the well-established Jameel principle under which courts will strike out trivial claims or whether the bar is to be raised higher. Either-way, whether a statement will cause "serious harm" or not will very much depend on the facts of individual cases.

Truth

Clause 2 renames the defence of justification as the defence of "truth".

Honest opinion

Clause 3 codifies the common law defence of "fair comment". The term "honest comment" is already in widespread use and is a more accurate description of the common law defence.

Clause 4 codifies the common law defence of Reynolds Qualified Privilege. This provides a defence to the publication of statements which are defamatory and false, but have been published in a responsible and even-handed manner.

Internet intermediaries

Clause 5 prevents claimants from suing a website operator where content has been posted by a third party unless the third party is anonymous and the website operator has failed to respond to a "notice". significantly, it is unclear what such a notice will require the website operator to do as this is to be prescribed by a statutory instrument. A requirement for website operators to disclose user details to complainants risks clashing with data protection laws.

Clause 10 states that "a court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher". It is unclear how this clause interacts with clause 5 and why a separate clause is necessary. At the present time this clause causes confusion rather than clarification.

Peer-reviewed statements in scientific or academic journals

Clause 6 is a response to the perceived problem of defamation claims stifling academic debate. As with much of what the media reports about defamation law, this notion is more imagined than real. Indeed, in the most prominent case in this area, British Chiropractic Association v singh [2010] EWCA Civ 350, the Court of Appeal found in favour of the Defendant agreeing that his criticism of the Claimant's promotion of certain treatments was protected by fair comment. This decision is already binding on the courts. Clause 6 creates a privilege defence for articles in scientific and academic journals where statements have been reviewed by the editor and a contemporary in the field. The defence is defeated by malice.

single publication rule

Clause 8 has the effect of starting the limitation clock at the point of the first publication of a statement by a defendant (or a statement which is substantially the same). This is particularly relevant where publication takes place online and is considered to be ongoing. The rule does not apply where the manner of the subsequent publication is materially different from the manner of the first publication - this includes the prominence and the extent of the publication. Crucially, the Bill does not adopt the proposal of the Joint Committee that the single publication rule should apply to multiple publishers. Thus, for the purpose of clause 8 the "first publication" is the first one made by that particular defendant.

Libel tourism

Clause 9 purports to address the myth of libel tourism by stating that "A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement."This clause adds nothing new to the existing law and the notion that London is a haven for libel claimants from around the world (where there is little or no nexus to the jurisdicition) is simply a fallacy - such claims are already likely to be struck out.

Trial by jury

The presumption of a jury trial is reversed by Clause 11. such trials are considered too costly and are already something of a rarity in libel proceedings (the last libel jury trial took place in 2009). The court will retain a discretion to order trial by jury.

Publication of summary of judgment

Clause 12 empowers the court to order that an unsuccessful defendant publishes a summary of a judgment.

Conclusion

Important issues the Bill does not seek to address are the cost of defamation cases and the procedural mechanisms. The expensive and complex nature of defamation actions inevitably has an effect on prospective litigants. A fear of the financially fatal consequences of losing such litigation can mean that actions are not brought and damaging statements go unchecked. Conversely, faced with the risk of litigation a publisher - particularly one of limited means - may back down resulting in freedom of expression being stifled.

The internet cannot be ignored or trivialised. It seems inevitable that in the future the vast majority of defamation cases will concern online publication. Thus the success or failure of the Bill will depend a great deal on what becomes of Clause 5 and 10. It is hoped that in its rush to get the Bill on to the statute books that parliament will be careful to ensure it is fit for purpose.