14.12.24
Defamation Act 2013: A summary and overview 10 years on
On 1 January 2014 the Defamation Act 2013 (‘the Act’) came into force. At the time, we published an article considering the individual provisions of the Act, and speculating about how the law of defamation had been changed. We first reviewed the practical impact of the Act in 2020, and now do so again, a decade on from the Act first coming into force.
What did the Act do?
According to Lord Sumption, in Lachaux v Independent Print Ltd & Anor [2019] UKSC 27, the Act sought ‘to modify some of the common law rules which were seen unduly to favour the protection of reputation at the expense of freedom of expression’. More specifically, the Act codified and consolidated parts of both existing case law and statute, specifically in relation to the defences of justification (now 'truth'), journalistic (or Reynolds) qualified privilege (now 'publication on a matter of public interest') and fair comment (now 'honest opinion'). The latter two defences were modified, and not mere codified. Amongst other provisions, the Act introduced a 'serious harm' threshold for bringing a defamation claim, and a single publication rule (potentially of great significance to online publication). The Act stipulates that the courts of England and Wales do not have jurisdiction to hear defamation actions against persons domiciled outside the UK, unless satisfied that this is clearly the most appropriate place to bring the action. This provision was intended to deter so-called ‘libel tourism’, although its focus on the domicile of the defendant rather than the claimant has meant that in practice it has simply supplemented the common law doctrine of forum conveniens. The Act also reversed the presumption regarding mode of trial – to judge rather than jury. The statute and the impact of each provision is considered in more detail below.
Section 1 – Serious harm
The provision under section 1(1) of the Act that a statement is not defamatory unless a claimant can show that “...its publication has caused or is likely to cause serious harm to [his/her] reputation...“ has attracted more judicial attention than any other part of the Act. The question of what “serious” means and how it should be proved has been a vexing one. In Lachaux v Independent Print Ltd & Anor [2019] UKSC 27 (see our blog here) the Supreme Court held that the meaning of section 1(1) is such that the question of whether serious harm has been suffered must be determined by reference to actual facts – the impact of the statement – not just the meaning of the words. However, the Court acknowledged that inferences of fact can be drawn from the circumstances and context of the publication, including matters such as (i) the scale of publication, (ii) evidence that the publication came to, or was likely to come to, the attention of identifiable individuals who knew the claimant and (iii) the gravity of the statement(s).
Subsequent decisions have provided some guidance on the circumstances in which the Court is prepared to infer serious harm to reputation. Where publication is to a large audience, or in the mass media, this has generally been sufficient. In the first instance decision in Riley v Murray [2021] EWHC 3437 (QB), Nicklin J found that a Tweet receiving 94 responses, 661 re-tweets and 1,764 likes, while not in the “league of mainstream publication” provided a “solid basis on which to infer serious harm” [43]. However, evidence of large-scale publication, even in the mass media, does not set up an automatic inference of serious harm. In Sir James Dyson v MGN Limited [2023] EWHC 3092 (KB), Jay J declined to draw an such an inference of serious harm where the contested publication was in a national newspaper. Each case will depend on its facts.
With the rise of social media defamation, the Court has had to consider the assessment of serious harm in cases of online publication. This can be difficult in a medium characterised by coarse language and polarised views. The Court of Appeal’s judgment in Banks v Cadwalladr [2023] EWCA Civ 219 dealt with the role of the social media ‘echo chamber’ in the assessment of serious harm (see our blog here). Warby LJ, overturning the first instance decision on this issue, made clear that the fact that a defendant publishes an allegation largely to their own echo chamber (i.e. their followers/readers), who may already have a generally low opinion of the Defendant, is irrelevant to the assessment of serious harm.
In Cadwalladr, the Court of Appeal also confirmed that “publication” for the purposes of section 1(1) (and indeed, the 2013 Act as a whole unless otherwise stated) continued to have its common law meaning – a communication of the statement to someone other than the claimant – and that each single communication is a separate and actionable tort. The consequence of this is that the serious harm test is not, as the Claimant argued, a threshold test that only needs to be satisfied once in respect of any publication of the statement complained of. Such an interpretation would create the perverse scenario in which a libel claim could succeed in respect of a publication that did not cause serious harm.
Despite some judicial remarks in earlier decisions suggesting that serious harm might, in appropriate circumstances, be decided by way of preliminary issue (see, for example, Warby J, as he then was, in Hamilton v News Group Newspapers Ltd [2020] EWHC 59 (QB)), it is now generally accepted that serious harm is best decided at trial, a position endorsed by paragraph 17.34 of the King’s Bench Guide 2024.
However, there is no bar to defendants applying for summary judgment in circumstances where a claim has no real prospect of succeeding on serious harm. Our October 2023 blog explored seven post-Lachaux cases where the defendant has applied for summary judgment/strike out on this basis.
The Act also introduced an additional test under section 1(2) that applies to a body trading for profit, namely a requirement to show that a statement has caused or is likely to cause serious financial loss. By contrast with section 1(1), this provision has seen relatively little scrutiny. In Brett Wilson LLP v Persons Unknown [2015] EWHC 2628 (QB) (see our blog here) Warby J noted that whether financial loss is “serious” must depend upon the context. In the handful of cases in which the court has had to consider financial loss, judges have been prepared to draw inferences where appropriate. In Euroeco Fuels (Poland) Ltd & Ors v Szczecin And Swinoujscie Seaports Authority SA & Ors [2018] EWHC 1081 (QB) Nicol J noted that Parliament had not intended to limit ‘serious financial loss’ to special damage, and that was no reason why financial loss, like other forms of serious harm, was not capable of being inferred from evidence. Mr Justice Warby (as he then was) in Gubarev v Orbis Business Intelligence [2020] EWHC 2912 agreed that financial loss could be inferred but indicated that the mere combination of substantial publication and the seriousness of the allegations complained of is unlikely to be enough: “More evidence, and a more detailed examination of the context, will normally be required.”
Overall, corporate defamation claims have been few and far between. However, large companies seldom brought libel claims before the Act (see the unfavourable publicity attracted by McDonald’s in the infamous ‘McLibel case’ for why) and this remains the case. As such, it is difficult to say how much of an impact section 1(2) (which was a last-minute amendment to the Act) has had.
Section 2 – The defence of truth
The defence of truth is essentially the same as the common law defence of ‘justification’, which it replaced. Nothing has happened during the past 10 years to suggest otherwise, and the courts are applying the principles that applied to a plea of justification to a plea of truth. The repetition rule has also survived unchanged.
As was generally envisaged when the Act came into force in 2014, judges are now routinely asked to determine meaning at a preliminary hearing. The Court has encouraged parties to seek such determinations before a Defence is filed so that a defendant can understand what case they need to meet if running a truth defence. This is now reflected in paragraph 6.2 of the Practice Direction 53B which stipulates that applications for meaning determinations may be made at any time after service of particulars and ‘should be made promptly’ (see our blog here). Evidence is generally not permissible at meaning determinations. In Hewson v TNL & ANL [2019] EWHC 650 (QB), Nicklin J opined that there was no practical reason why meaning cannot be determined without a hearing, based on the parties’ written submissions, and that the resulting cost and time saving would clearly be in furtherance of the overriding objective. Whilst the parties in that case consented to such a procedure (as in Hamilton), the Judge indicated that the court may nevertheless direct it in future cases. In practice, however, the Court has largely continued to determine meanings at a hearing. This is likely because pure/simple meaning determinations may be relatively rare, and the meaning of the words is often determined alongside a host of other knotty issues such as whether the statement is defamatory at common law, whether it is a statement of fact or opinion, and what constitutes the whole of the publication (including the relevance of linked material and adjacent publications/ context).
Section 3 – The defence of honest opinion
Section 3 replaced the common law defence of ‘fair comment’ with a new statutory defence of ‘honest opinion’. In Butt v Secretary of State for the Home Department [2017] EWHC 2619 (see our blog here) Mr Justice Nicol noted that much of section 3 effectively codified the defence of fair comment and that previously established common law principles are still applicable to the new statutory defence. However, there are some differences. Most significantly, the requirement that the comment be on a matter of public interest was abolished.
The section 3 defence consists of three conditions, as per the following sub-sections:
(1) It is a defence to an action for defamation for the defendant to show that the following conditions are met.
(2) The first condition is that the statement complained of was a statement of opinion.
(3) The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.
(4) The third condition is that an honest person could have held the opinion on the basis of—
(a)any fact which existed at the time the statement complained of was published;
(b)anything asserted to be a fact in a privileged statement published before the statement complained of.
Nicklin J, provided a helpful summary of how the Courts will determine whether words complained of are statements of fact or opinion in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB):-
“[16]…
i) The statement must be recognisable as comment, as distinct from an imputation of fact.
ii) Opinion is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.
iii) The ultimate question is how the word would strike the ordinary reasonable reader. The subject matter and context of the words may be an important indicator of whether they are fact or opinion.
iv) Some statements which are, by their nature and appearance opinion, are nevertheless treated as statements of fact where, for instance, the opinion implies that a claimant has done something but does not indicate what that something is, i.e. the statement is a bare comment.
v) Whether an allegation that someone has acted “dishonestly” or “criminally” is an allegation of fact or expression of opinion will very much depend upon context. There is no fixed rule that a statement that someone has been dishonest must be treated as an allegation of fact.
In Corbyn v Millett [2021] EWCA Civ 657, the Court of Appeal provided useful commentary on the issue of ‘bare comment’, where a statement implies that the claimant has done something, but fails to identify what that something is, e.g. ‘Mr Jones is a disgrace’. Despite giving the appearance of opinion, this statement is nevertheless to be treated as a statement of fact. Warby LJ confirmed that the question of bare comment comes into play when assessing whether a defendant has met the first condition of the section 3 defence (that the statement is opinion, rather than fact) [23].
Two important decisions clarify aspects of the second and third conditions of the section 3 defence which are respectively found in sections 3(3) and 3(4) of the Defamation Act 2013. As regards the second condition, Warby LJ stated in Riley v Murray [2022] EWCA Civ 1146 that “the only question raised by section 3(3) of the 2013 Act is whether the statement complained of indicated the basis of the opinion which it contained [44].”
In respect of the third condition, namely whether an honest person could have held the opinion on the basis of any fact which existed at the time of publication, the Court of Appeal held that, where the opinion defended is based on a single specific fact, the section 3 defence will fail if that fact is untrue [59].
The key questions before the High Court in Dyson v MGN [2023] EWHC 3092 were whether a defendant is entitled to rely on extraneous facts not mentioned in the article in aid of its honest opinion defence and whether a defendant is obliged to place any facts in their full and proper context. On the first question, the judge found that, on the assumption that the asserted facts are true, there is no basis for confining the defendant to that single fact [106]. On the second question, the judge concluded that the “scope for any requirement to include so called contextual facts is extremely limited.” We considered the decisions in Riley, Dyson Corbyn in more detail in our February 2024 blog.
Another interesting development in this area has been the approach to whether allegations of dishonesty can amount to statements of opinion (answer: yes, depending on the context). We considered this in a blog in March 2019.
Section 4 – The defence of publication on a matter of public interest
Section 4 abolished the common law defence of ‘Reynolds qualified privilege/journalistic qualified privilege’ and replaced it with a new statutory defence of ‘publication on a matter of public interest’.
As anticipated, and affirmed in Economou v de Freitas [2016] EWHC 1853 (QB) (see our blog here), the new section 4 defence is being interpreted broadly in line with the principles of the common law Reynolds privilege. However, the Supreme Court’s decision in Serafin v Malkiewicz [2019] EWCA Civ 852 makes clear that the new statutory defence is not a mere codification of Reynolds. While the ‘Reynolds factors’ (e.g. attempts to verify etc.) are relevant to whether a defendant can successfully rely on the section 4 defence, they are not to be used as a ‘check list’. This is especially so in cases involving non-media defendants. In paragraph 139 of Economou, Warby J listed a number of principles regarding the operation of the section 4 defence. Significantly, it was argued in Economou that the Defendant’s conduct fell ‘far short’ of the Reynolds criteria, but the section 4 defence nevertheless succeeded – Warby J considered that it would be wrong to have expected the Defendant to meet the Reynolds criteria, as he was not a journalist. Warby J’s approach was endorsed by the Court of Appeal (Economou v De Freitas [2018] EWCA Civ 2591 – see our blog here).
Two more recent cases, Hay v Creswell [2023] EWHC 882 (KB) and Aaronson v Stones [2023] EWHC 2399 (KB), both cases involving allegations of serious sexual misconduct, provide further authority on the scope of the public interest defence in the context of non-journalist defendants. In Creswell, the Court found that the publications were on a matter of public interest, the Defendant believed this to be the case and, finally, this belief was reasonable because the Defendant was writing from her own experience and there were no other ”checks or inquiries that standards of reasonableness required her to conduct to verify the information that she proposed to publish before she did so” [210]. By contrast, in Aaronson, the Defendant was unsuccessful with his defence. Interestingly, Knowles J cited Bloomberg v ZXC [2022] UKSC 5, a privacy case, to support the conclusion that the Court need to carefully scrutinise “the sensitivities involved in publicly accusing someone of a criminal offence” and that there is no automatic or unqualified public interest in naming an alleged abuser. We wrote a blog on the handling of sexual misconduct defamation claims in October 2022.
The decision in Banks also confirms that the public interest defence may apply to some phases of a publication’s history, but not to others. Where a change of circumstance, such as the emergence of new information or the publication of the outcome of the investigations of a state body, means that the continuing publication of a statement is no longer in the public interest, the Court is to assess serious harm from the date of the change of circumstances. One might query whether it is reasonable to expect defendants to monitor changes in circumstances that might render a previously good defence untenable and to expect them to amend their publications. One might also wonder about the tension between this analysis and the single publication rule/limitation (i.e. what if the new information which renders a previously bad claim good, emerges after the expiry of the 12-month period following initial publication?)
Warby J (as he was then) noted in Barron MP & Anor v Vines (Rev 1) [2015] EWHC 1161 (QB) (see our blog here) that the section 4 defence is also potentially available to protect expressions of opinion (such as on political matters) even where the section 3 defence of honest opinion is not available, although it is hard to envisage circumstances where that would happen.
Claimant lawyers dealing with pre-publication matters will doubtless rely on certain observations made by Nickin J about the Second Defendant’s conduct in the case of Turley v UNITE the Union & Anor [2019] EWHC 3547. Nicklin J criticised, amongst other things, the Second Defendant’s failure to set out a full, accurate and fair summary of the allegations that he intended to publish and the unreasonable and self-imposed publication deadline for a response. More recently, Nicklin J provided further salutary guidance in Harcombe & Anor v Associated Newspapers Ltd & Anor [2024] EWHC 1523 (KB) where he castigated the Defendants’ “right-to-reply emails” for their failure ”to disclose the full nature and extent of the attack on the Claimants that was about to be published in the Articles”, which “had a direct impact on what the Claimants said in their responses”.
Section 5 – A defence for operators of websites
Section 5, in tangent with the Defamation (Operators of Websites) Regulations 2013, can provide website operators with complete immunity where they follow a procedure for responding to defamation complaints concerning third party content. This may include contacting the third party to request that their details be passed to the claimant.
We are not aware of any reported case in which a section 5 has been run at a hearing. Our own experience suggests that take up of the section 5 procedure has been very low. The procedure is complicated and onerous. It is probably unattractive to website operators who will often have no interest in the matter and/or be able rely on other substantive defences.
Section 6 – Peer-reviewed statements in scientific or academic journals.
Section 6 provides a niche category of the qualified privilege defence to those publishing in a scientific or academic journal, provided that the statement related to a scientific or academic matter (section 6(2)) which had been subjected to an independent review as to its scientific/academic merit, either by the editor of the journal or by one or more other experts in the matter concerned (section 6(3)). Where the privilege is found, the publication of a fair and accurate copy, extract from or summary of the statement is also privileged. The defence is defeated if the claimant can show the statement has been made with malice (section 6(6)).
This provision is aimed at preventing the stifling of legitimate scientific debate, the inspiration for which was the libel claim in British Chiropractic Association v Singh [2010] EWCA Civ 35, in which a scientist/science writer was sued for accusing the claimant of promoting bogus treatments. Whilst BCA was more concerned with fair comment/honest opinion, the case was one of the catalysts for libel reform.
We are only aware of one reported case that considered section 6: Harcombe v Associated Newspapers [2022] EWHC 543 (QB). The case concerned two claims brought by doctors in relation to a series of articles published by the Daily Mail and Mail on Sunday about the use of statins, including one with the headline ‘The Deadly Propaganda of Statin Deniers’. The Defendants asserted that some of the paragraphs of the articles were protected by qualified privilege, including some by section 6 of the 2013 Act, as they contained reference to various scientific studies. Ordinarily, the Court would have held a preliminary issue trial to determine the meaning of the words complained of. The complicating factor in this case was the Court of Appeal’s decision in Curistan v Times Newspapers Ltd [2009] QB 231, which requires a Court to remove sections of the article that are protected by qualified privilege before determining meaning.
The Defendants were successful in arguing that there should be a preliminary issue trial (‘Trial 1’) to determine whether the ‘reporting’ qualified privilege defence under section 15 Defamation Act 1996 was made out, whether the qualified privilege under section 6 of the Defamation Act 2013 was made out, whether the Claimants’ plea of malice defeats any qualified privilege defence that is established and whether the articles are protected by the public interest defence under section 4 of the Defamation Act 2013.
Trial 1 was heard across seven days in July 2023. In a judgment handed down on 25 June 2024, Nicklin J determined that neither the section 4 defence nor the defence under section 15 of the Defamation Act 1996 were made out. Nicklin J did, however, uphold the defence of qualified privilege under section 6 of the Defamation Act 2013 in respect of certain passages in the articles that referred to a scientific paper (but not in respect of one reference which was found not to be fair or accurate). Nicklin J dismissed the Claimants’ plea of malice (in respect of the article passages for which the privilege defence was upheld), making clear that he did not find the journalist who authored the articles to be dishonest.
Nicklin J considered the purpose of the protection afforded by section 6, finding that “having established the academic or scientific value of the statement, its publication to the wider public should be privileged and thereafter available to contribute to important public debate”.
Section 7 – Court and other reports protected by privilege
Section 7(1) internationalised the scope of section 14 of the Defamation Act 1996 so that fair and accurate reporting of legal proceedings in any court established under the law of any country or territory (and also any international court or tribunal established by the Security Council of United Nations or by an international agreement), is covered by absolute privilege. Statements covered by absolute privilege are immune from suit even if made maliciously. In Shakil-Ur-Rahman v ARY Network Ltd [2016] EWHC 3110 (QB) the defendant sought to rely on the section 14 defence in relation to Pakistani court proceedings, but the defence failed because the allegation in question had not formed a part of those proceedings and the offending broadcast had not even referred to them.
Section 7 also extended the scope of section 15 of the Defamation Act 1996 to cover reports of scientific and academic conferences with qualified privilege (providing a defence unless a claimant can establish that a statement was made maliciously). It also internationalised the qualified privilege protection previously afforded to meetings of UK listed public companies to apply to listed companies worldwide, and extended qualified privilege to cover summaries of (as well as copies of/extracts from) various documents circulated to members of listed companies by the board, directors, auditors or other members.
Section 8 – The single publication rule
The single publication rule provides that the limitation period of 12 months runs from the date of first publication to the public, notwithstanding any subsequent publication of a statement which is substantially the same. It, effectively, ended the indefinite liability for online publications, which under the common law are ‘published’ each time they are accessed (previously ‘resetting’ the limitation period each time).
The most obvious scenario for litigation is a dispute over whether a previous publication was substantially the same and had set the limitation clock running. This was considered recently in Parish v Wikimedia Foundation Inc [2024] EWHC 2301, in which the claimant brought a claim over his Wikipedia entry. The Wikipedia page evolved over time. Different words were used to state that the claimant had a criminal conviction, but the court held the words on the version sued over were materially the same as an entry that was outside the limitation period. Steyn J held there was no real prospect of the claimant defeating a limitation defence.
More generally, there is a friction between section 1 of the Act and section 8; a claimant is required to get on and sue, but they must also show that the statement has caused or is likely to cause serious harm. In many instances they will not know what the ultimate effect of a publication will be, much less be able to foresee to what extent events will enable them to evidence it. This issue was touched upon in an abstract sense by Lord Sumption in the Supreme Court’s decision in Lachaux (at paragraph 18) (though not, in our view, resolved).
Section 9 – Action against persons not domiciled in the UK
Section 9 (amended since Brexit) provides that the court will not have jurisdiction to hear a defamation claim where the prospective defendant is resident outside of the UK. Parliament enacted this provision to address (somewhat exaggerated) concerns about ‘libel tourism’: foreign litigants using the courts of England and Wales to recover damages for libel from foreign publishers where the libel was more widely published in other jurisdictions. Perhaps counterintuitively then, the provision focuses on the domicile of the defendant not the claimant.
The first case in which this provision came to be considered was Ahuja v Politika Novine I Magazini D.O.O & Ors [2015] EWHC 3380 (QB). Sir Michael Tugendhat held that the court had to consider all jurisdictions in which the defamatory statement had been published in order to determine which was the most appropriate forum. The Claimant’s case was that he had suffered harm in multiple jurisdictions. However, he had provided evidence only in relation to harm suffered in England. The court could not, therefore, be satisfied that England and Wales was the most appropriate place in which to bring an action.
Like Ahuja, Wright v Ver [2020] EWCA Civ 673 concerned a claimant with a global reputation. In Wright v Ver, the Court of Appeal, in dismissing the Claimant’s appeal against the High Court’s decision to strike out the claim on jurisdictional grounds, considered a range of facts that would be relevant to determining whether a claimant has met the evidential burden of showing that England and Wales is ‘clearly’ the most appropriate place in which to bring an action, including, inter alia, the number of times a statement has been published in a given jurisdiction, the damage to a claimant’s reputation in England and Wales compared with elsewhere, and the availability of fair judicial processes in other jurisdictions. Our blog on the case can be found here.
Perhaps the most important authority on section 9 is Soriano v Forensic News LLC [2021] EWCA Civ 1952. The Claimant, an Israeli businessman who had naturalised in May 2009 after moving to the United Kingdom in September 2003, sued five US-based defendants, including an investigative journalism platform.
The Court of Appeal held, contrary to both the first instance judge and the High Court’s decision in Al Sadik (aka Riad Tawfiq Mahmood Al Sadek) v Sadik [2019] EWHC 2717 (QB), that section 9 is a modified version of the forum conveniens test, not an entirely novel and freestanding regime. Furthermore, the Court held that the test under section 9 relates to the court’s personal jurisdiction over a defendant, not, as was held at first instance in Soriano and in Al Sadik, to ‘the subject-matter of a suit’. The Court also determined that:
- a defendant contesting jurisdiction under section 9 bears an evidential burden in respect of the question of an alternative available jurisdiction;
- The standard of proof is ‘a good arguable case’, the same as for forum conveniens disputes; and
- Expert evidence on foreign law will not always be necessary.
Section 10 – Secondary publishers
Section 10 states the court does not have jurisdiction to hear a defamation claim against a person who was not the “author, editor or publisher” of the statement complained of, unless it is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher.
This provision would, for instance, normally prevent a claimant suing Facebook in respect of user postings on its platform (assuming the poster were identifiable). The provision has undoubtedly saved Internet intermediaries considerable grief, although the protection does not apply to other causes of action where they remain vulnerable to suit (most notably data protection and privacy claims). Of course, the role of intermediaries is not always black and white. In Brett Wilson LLP it was held that the operator of a website hosting reviews apparently submitted by third parties was liable as an editor.
In Mussarat v Worldview Media Network Ltd [2022] EWHC 1604 (QB), Deputy Master Toodgood briefly considered section 10 in the context of a live broadcast, in the context of an application by the Claimant for default judgment and summary disposal. On July 2020, the Defendant aired a live programme which referred to the Claimant. Section 1(3)(d) of the Defamation Act 1996 states that a person shall not be considered a publisher of a statement if he is only involved “as the broadcaster of a live programme containing the statement in circumstances in which he has no effective control over the maker of the statement.” This provision in combination with section 10 might, therefore, have voided the Court’s jurisdiction to hear the claim, save for the fact that, on the evidence, the programme in question was broadcast with a two-hour delay.
Section 11 – Jury trials
Section 11 reversed the presumption that defamation cases be tried by jury. Since the Act’s inception, there have been no defamation jury trials. We are aware of two cases in which unsuccessful applications for a jury trial were made.
In Yeo v Times Newspapers [2014] EWHC 2853 (QB) (see our blog here), Warby J (as he then was) dismissed The Times’ application and remarked that the greater the public interest in the issues in the case, the greater the need for trial without a jury as this would provide for a reasoned judgment.
More recent is the decision in Blake and others v Fox [2022] EWHC 1124 (QB), in which actor turned political activist Laurence Fox brought a counterclaim in respect of allegations of racism. Fox applied for a jury trial under section 69(3) of the Senior Courts Act 1981 (‘the 1981 Act’). He argued that a jury trial was necessary because he claimed the definition of racism in the Equal Treatment Bench Book provided by the Judicial College (the body responsible for training the judiciary), did not reflect how ordinary people understood the word ‘racism’ and that this created the possibility of ‘involuntary bias’ if the case was decided by a judge alone. Nicklin J rejected this argument. No evidence other than the publication complained of is admissible for the purposes of determining meaning, and definitions of racism, whether in the Equal Treatment Bench Book or otherwise, should be out of the judge’s mind. Furthermore, because the definition of racism in this case was to be a central issue, a judge would give a reasoned judgment on this point. This was a better safeguard against error than directing a jury trial. Nicklin also declined to exercise his discretion under section 69(3) of the 1981 Act, “largely for the same reasons as were carefully and compellingly explained by Warby J in Yeo [77].”
Section 12 – Power to order defendant to publish a summary of judgment
Section 12 provides that where the court gives judgment for a claimant, it may order the defendant to publish a summary of the judgment and, if necessary, to decide upon wording and give directions as to the time, manner, form or place of publication.
In Monir v Wood [2018] EWHC 3525 (QB) (see our blog here) Nicklin J noted that exercising the power to require a defendant to publish a summary of the judgment is to interfere with its Article 10 right and, as such, the interference must be justified. In that case there was no realistic prospect of the summary coming to the attention of those to whom the original libel was published and, in any event, the Claimant was expected to secure vindication of his reputation through the publicity the judgment was likely to receive.
An initial reticence of the judiciary to make section 12 orders appears to have faded. The Court has subsequently ordered such a remedy in several cases, including in Crosbie v Ley [2023] EWHC 2626 (KB) where the Defendant succeeded with counterclaims for libel and harassment in respect of numerous social media posts (see our blog here), Wai v Kywe ((2023) unreported) (see our blog here) in respect of a defamatory Facebook post, and Schofield v Politicalite Ltd & Anor [2024] EWHC 543 (KB) in which the Claimant – an acquaintance, but no relation of the TV host Phillip Schofield – succeeded in a claim in respect of an article on an entertainment industry website which suggested that he had groomed children.
Section 13 – Power to make orders against third parties
Section 13 provides that where the court gives judgment for a claimant it may order the operator of a website to remove the statement, or any person who was not the author, editor, or publisher of the statement to stop distributing, selling or exhibiting it.
The first section 13 order we are aware of was made by Master Cook in Summerfield Browne Limited v Phillip James Waymouth [2021] EWHC 85 (QB), in which the Defendant referred to the Claimant as ‘a scam solicitor’ on the Trustpilot website. The Master commented that the Defendant’s conduct had made it doubtful he would comply with the injunction against him, thus justifying an order against Trustpilot.
In Blackledge v Persons(s) Unknown [2021] EWHC 1994 (QB), the Defendant had anonymously published a series of blogs on BlogSpot, which is hosted by Google, accusing the Defendant of sexual misconduct. The Defendant did not respond to the claim and had gone to considerable lengths to obscure their identity. The Court made an order under section 13 requiring Google LCC to remove the content from BlogSpot.
We considered the section 13 in more detail in our September 2021 blog.
Section 14 – Special damages
Section 14 repealed section 14(1) of the Slander of Women Act 1891 (which made allegations of unchastity against a woman actionable per se) and also provides that a statement implying that a person has a contagious or infectious disease does not give rise to a cause of action in slander unless the publication causes that person special damage.
Conclusion
Since our blog reviewing the impact of the Act in 2020, there have been several important decisions clarifying the application of the serious harm test and the section 3 defence of honest opinion.
The impetus behind the Act (as per the words of Lord Sumption quoted at the start of this article) was a recalibration of the balance between freedom of expression and the protection of reputation. The introduction of the serious harm threshold, which the Supreme Court has now confirmed not only raises the level of seriousness (from that required by the common law authorities of Jameel and Thornton) but requires it to be determined by actual facts about the statement’s impact – has certainly created more of a level playing field. Free speech campaigners and the media had wanted to see the UK adopt an approach more akin the US system, where there is no presumption of falsity and public figures bringing claims must prove that a statement has been made maliciously. This did not happen. Compared to the US, UK defamation law is still relatively claimant-friendly.
Even now, whilst there may be academic consensus about the operation of section 1, it remains very difficult to predict the outcome of section 1 disputes in various factual scenarios. The Supreme Court’s ruling means that a huge amount will be left to the range of rational judicial decision-making. In this respect, our 2014 predictions that the courts may find themselves tied up with interpretation of the statutory wording, and that litigants and lawyers may be entering a period of uncertainty has proved entirely correct.
As noted above, many of the provisions have either not been tested in court at all, or have arisen on relatively few occasions, such that some consequences and battlegrounds may be yet to emerge. As things stand, however, aside from the ‘serious harm’ threshold, it might be said that the Act has proved relatively uncontroversial and has not substantially changed the law of defamation.
As we mentioned in our original article, it is somewhat unfortunate – given the breadth of topics that the Act did seek to address – that it stopped short of fully consolidating and codifying defamation law. To do so may have led to more uncertainty in the short-term but, ultimately, would have made defamation law more accessible; instead non-specialists face the daunting task of having to consider at least three statues (one of which is now 72 years old) and a plethora of common law.
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Articles are intended as an introduction to the topic and do not constitute legal advice.