Government publishes draft Defamation Bill for consultation

Practical Law UK Legal Update 8-505-1702 (Approx. 6 pages)

Government publishes draft Defamation Bill for consultation

by PLC IPIT & Communications

Facts

Provisions in the draft Bill

Clause 1: requirement to show substantial harm

Libel is currently actionable without proof of actual damage. The courts have considered the question of what is sufficient to establish that a statement is defamatory. In Thornton v Telegraph Media Group Limited [2010] EWHC 1414 (QB), the House of Lords identified the existence of a "threshold of seriousness" as necessary for a statement to constitute something that is defamatory. The government considers that there is merit in legislating to remove the scope for trivial and unfounded actions succeeding. It seeks views on whether the test of "substantial harm" would meet that aim.

Clause 2: responsible publication on matter of public interest

Clause 2 of the draft Bill introduces a new defence of responsible publication on a matter of public interest. This provides a defence where the 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.

In Reynolds v Times Newspapers Ltd [1999] AC 127, the House of Lords broadened the qualified privilege defence to include the media, in effect introducing a general public-interest defence (known as the "Reynolds defence" or "Reynolds privilege"). However, concerns have been expressed by non-governmental organisations (NGOs), the scientific community and others that there is a lack of certainty over how the Reynolds defence applies outside the context of mainstream journalism, and that this creates a chilling effect on freedom of expression and reporting.

The media and publishers have also expressed concerns about the way in which Reynolds operates in practice, and have found the defence very complicated and expensive to run. From an opposing perspective, some lawyers working in the field expressed the view that the courts have already made clear that the Reynolds defence applies more widely than just to mainstream journalism, and that there is a risk that any statutory provision would complicate the law rather than clarify it.

The government considers that there is merit in providing a statutory defence which is clearer and more readily applicable outside the context of mainstream journalism than the Reynolds defence, and that this would be helpful in ensuring that publications on matters of public interest are sufficiently protected so that responsible journalism can flourish and investigative journalism and the work of NGOs are not unjustifiably impeded by the threat of defamation proceedings.

The draft Bill does not define what is meant by "the public interest", but the government believes that this is a concept which is well-established in English common law and that, in view of the wide range of matters which are of public interest and the sensitivity of this to factual circumstances, attempting to define it in statute would be fraught with problems.

The draft Bill makes clear that, when deciding whether a defendant acted responsibly in publishing a statement, the matters to which the court may have regard include a number of specific circumstances. These are broadly based on the factors established by the House of Lords in Reynolds, and are to be regarded as illustrative and non-exhaustive.

The consultation seeks views on the inclusion of the new public interest defence and on the substance of the draft clause.

Clause 3: statutory defence of truth

This defence would replace the common law defence of justification. The new defence applies if the defendant can show that the imputation conveyed by the statement complained of is substantially true.

Clause 4: statutory defence of honest opinion

This defence would replace the common law defence of fair comment. The government's aim in renaming the defence is to simplify and clarify aspects where the law is complex and uncertainty has arisen.

Under the proposed clause 4, three conditions would need to be met to establish the defence of honest opinion:

The statement complained of must be an expression of opinion and not an assertion of fact.
The opinion must be on a matter of public interest.
The opinion must be one that an honest person could have held on the basis of a fact which existed at the time the statement was published or a privileged statement published before the statement complained of.

The government invites comments on whether it is appropriate to legislate to replace the existing common law defence with a new statutory defence and on the substance of the draft clause.

Clause 5: absolute and qualified privilege

The draft Bill updates and extends the circumstances in which the defences of absolute and qualified privilege are available.

Clause 6: single publication rule

At present, each publication of defamatory material gives rise to a separate cause of action which is subject to its own limitation period (the "multiple publication rule"). The effect of this rule in relation to online material is that each "hit" on a webpage creates a new publication, potentially giving rise to a separate cause of action, should it contain defamatory material. There has been widespread support for change; see Legal update, Response to consultation on defamation multiple publication rule published .

The draft Bill makes provision for a single publication rule. The effect of this would be that a claimant will be prevented from bringing an action in relation to publication of the same material by the same publisher after the expiry of a one-year limitation period from the date of the first publication of that material to the public, or a section of the public. There would be discretion for the court to extend the period as necessary. However, the claimant would still be allowed to bring a new claim if the original material was republished by a new publisher, or if the manner of publication was otherwise materially different from the first publication.

Clause 7: libel tourism

The draft Bill addresses the issue of libel tourism, where cases with a tenuous link to England and Wales are brought in the jurisdiction. There is a widespread perception (not necessarily supported by research) that the English courts have become the forum of choice for those who wish to sue for libel and that this is having a chilling effect on freedom of expression throughout the world (for example in the USA where legislation (The Securing the Protection of our Enduring and Established Constitutional Heritage Act - known as the SPEECH Act) was introduced in 2010 to prevent foreign libel judgments being enforced there).

Clause 7 of the draft Bill would change the law so that a court does not have jurisdiction to hear and determine a claim to which the clause applies 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.

Issues for consultation not included in draft Bill

Responsibility for publication on the internet

The consultation paper seeks views on whether the law should be changed to give greater protection to secondary publishers such as internet service providers (ISPs), discussion forums and (in an off-line context) booksellers, or alternatively, how the existing law should be updated and clarified. In particular, the paper asks for comment on the following approaches:

Remove liability from ISPs and other secondary publishers altogether, so that claimants would only be able to pursue a defamation action against the person who has posted the material. However, this would present a serious impediment to claimants attempting to protect their reputation and secure the removal of defamatory material online.
Introduce a statutory system similar to that which currently applies in relation to copyright disputes in the US. This would involve the ISP or discussion board owner acting as a liaison point between the person complaining about a defamatory posting and the person who had posted the material. If, after an initial exchange of correspondence, the issue remained in dispute, the complainant would be required to initiate legal proceedings against the poster to secure removal of the material, and could not pursue an action against the ISP. However, this approach would encourage recourse to litigation and would, in particular, be likely to disadvantage claimants who were individuals or had limited resources.
Require the claimant to obtain a court order for removal of the allegedly defamatory material before any obligation could be placed on the ISP or web content host to remove it.
Develop separate provisions to provide a greater degree of protection to small-scale forums and blogs than is available to larger corporate ISPs with greater resources.

Procedural issues

The consultation paper seeks views on a number of procedural issues:

Introducing a new court procedure to resolve key preliminary issues at as early a stage as possible, so that the length and cost of defamation proceedings can be substantially reduced.
Whether the summary disposal procedure should be retained, and if so whether improvements can usefully be made to it
Whether the power of the court under the summary procedure to order publication of a summary of its judgment should be made more widely available in defamation proceedings.

Proceedings brought by companies

The paper seeks views on whether any specific restrictions should be placed on the ability of corporations to bring a defamation action.

The Culture Media and Sport Committee suggested in its report on Press Standards, Privacy and Libel (see Legal update, Select Committee report on press standards, privacy and libel) that it should be made more difficult for corporations to sue for defamation, and Lord Lester’s Private Member’s Bill (see Legal update, Private Members' Bill to amend defamation law has first reading) contained a provision requiring corporations to show that publication of the words or matters complained of had caused, or was likely to cause, them substantial financial loss.

The consultation paper notes that the main concerns in this area relate to cases where a company sues either an individual or an NGO, where there may be an "inequality of arms" between the claimant and the defendant which is used to stifle criticism of the company’s behaviour and activities through the threat of costly and protracted legal proceedings.

The government believes that there would be practical difficulties in introducing a provision requiring corporations to prove financial loss as proposed in Lord Lester’s Bill. In particular, it is likely that this would lead to corporate claimants frontloading costs in assembling detailed evidence of financial loss.

The paper concludes that the introduction of the new court procedure to resolve preliminary issues early and other provisions in the draft Bill, and the broader proposals on reform of civil litigation costs put forward by Jackson LJ (see Practice note, Jackson LJ's Review of Civil Litigation Costs: Final Report), should make defamation proceedings far less susceptible to manipulation by those with greater resources, whether they are companies or individuals. This will have benefits in all types of proceedings including cases involving corporations. However, it would welcome views on whether any further provisions would be helpful to address situations where an inequality of arms exists.

The ability of public authorities and bodies exercising public functions to bring a defamation action

The consultation paper asks whether the current provisions in case law restricting the ability of public authorities and bodies exercising public functions to bring defamation actions should be placed in statute and whether these restrictions should be extended to other bodies exercising public functions.

Comment

While the government's proposals have generally been welcomed, the Bill eventually put before Parliament would need to include provisions to deal with responsibility for publication on the internet and the issue of companies using libel laws to silence their critics. The draft Bill and the consultation paper do not deal specifically with the issue of costs, which is seen as the greatest problem with defamation actions. While the proposed procedural reforms are welcome, the government is relying on Jackson LJ's review of civil litigation costs for reform in this area (see Practice note, Jackson LJ's Review of Civil Litigation Costs: Final Report for details of Jackson LJ's proposed reforms, and Legal update, Ministry of Justice consults on Jackson LJ's proposals for reform of civil litigation costs for details of the government's consultation on the proposals).

Source

Ministry of Justice: Draft Defamation Bill, Consultation paper, CP3/11, 15 March 2011.

Government publishes draft Defamation Bill for consultation | Practical Law