In March 2011, the Ministry of Justice published a draft Defamation Bill for consultation (see Legal update, Government publishes draft Defamation Bill for consultation). The draft Bill included provisions for a new public interest defence available to defendants, a requirement for claimants to demonstrate substantial harm before they can sue, provisions to reduce so-called "libel tourism" and a single publication rule.
The consultation also contained questions on a number of other issues, including whether the law should be changed to give greater protection to secondary publishers, such as internet service providers (ISPs) and discussion forums, and whether an early resolution procedure should be introduced.
The consultation closed in June 2011 and a parliamentary committee, which gave pre-legislative scrutiny to the draft Bill, subsequently recommended further changes to the draft in its report in October 2011 (see Legal update, Joint Committee publishes report on draft Defamation Bill).
In March 2012, the government published its response to the committee's report (see Legal update, Government response to Joint Committee's report on draft Defamation Bill). It accepted a number of the committee's recommendations, such as raising the threshold for bringing a claim to one of "serious harm" and specifically abolishing the common law defences. However, it considered that it would be more appropriate for some of the recommendations to be dealt with in the explanatory text or by amendments to the Civil Procedure Rules.
In May 2012, the Defamation Bill was announced in the Queen's Speech (see Legal update, New Defamation Bill announced in Queen's Speech). The key elements of the Bill included:
Introducing a requirement that a statement must have caused serious harm for it to be defamatory (clause 1).
Creating a new statutory defence of responsible publication on matters of public interest (clause 2).
Introducing a single publication rule to prevent an action being brought in relation to publication of the same material by the same publisher after a one-year limitation period has passed.
Addressing libel tourism by tightening the test to be applied by the courts in relation to actions brought against people who are not domiciled in the UK or an EU member state.
Introducing a new process governing responsibility for publication on the internet to give greater protection to operators of websites hosting user-generated content provided they comply with a procedure to enable the complainant to resolve any dispute directly with the author of the material concerned (clause 5).
The Defamation Bill went forward for debate and amendment in the House of Lords in September 2012, with several changes having been made to it at report stage in the House of Commons (see Legal update, Defamation Bill goes to House of Lords). These included the addition of a new clause 13 which provided that a court that has given judgment for the claimant in an action for defamation can order the operator of a website on which the defamatory statement is posted to remove the statement.
Further amendments were made to the Bill during its passage through Parliament including the introduction of a financial loss threshold for businesses bringing a defamation claim. Finally, following agreement by both Houses of Parliament on the text of the Bill, it received Royal Assent on 25 April 2013.
The Defamation Act 2013 is to be brought into force later in 2013 by statutory instrument. The following is a summary of its key provisions, with particular focus on the provisions that will be relevant to ISPs and publishing on the internet.
Section 1: requirement to show serious harm
This section introduces a requirement that a statement must have caused (or be likely to cause) serious harm to the claimant's reputation for it to be defamatory in order to discourage trivial claims. This is seen as a higher threshold than "substantial harm" which was the government's original proposal when the Bill was first published as a draft in its 2011 consultation paper.
Section 1(2), which was introduced at a very late stage in the Parliamentary process, requires a business (defined as a "body that trades for profit") to show that the statement has caused or is likely to cause it "serious financial loss" in order for it to meet the "serious harm" requirement.
Section 2: statutory defence of truth
This new defence will replace the common law defence of justification. It applies if the defendant can show that the imputation conveyed by the statement complained of is substantially true.
Section 3: statutory defence of honest opinion
This new defence will replace the common law defence of fair comment. A defendant will have to meet the following three conditions to establish the defence of honest opinion:
The statement complained of must be an expression of opinion and not an assertion of fact.
The statement complained of must indicate the basis of the opinion.
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.
This provision broadly reflects the current defence of fair comment while simplifying and clarifying certain elements, but does not include the requirement for the opinion to be on a matter of public interest.
Section 4: statutory defence of publication on matter of public interest
This section introduces a new defence for those who are publishing material which they reasonably believe is in the public interest. It replaces the common law defence known as the Reynolds defence, which it is intended to reflect.
The original wording in the Bill referred to "responsible" publication and set out a non-exhaustive list of matters to which the court could have regard to in determining whether a defendant acted responsibly in publishing the statement. Section 4(2) now provides that the court should have regard to all the circumstances of the case. Section 4(4) provides that in its determination the court must make such allowance for editorial judgement as it considers appropriate.
Section 5: operators of websites
Section 5 provides that where an action is brought against the operator of a website in respect of a statement posted on the website, it will be a defence for the operator to show that it was not the operator who posted the statement on the website.
The defence is, however, subject to a number of caveats; section 5(3) provides that it will be defeated where the claimant shows all of the following:
It was not possible for the claimant to identify the person who posted the statement.
The claimant gave the operator a notice of complaint in relation to the statement.
The operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.
Section 5(4) (which was a later amendment) adds some clarification to the requirement to identifying the suspected defendant, stating that it is only possible to "identify" a person if the claimant has sufficient information to bring proceedings against him.
Further provisions concerning this defence are to be set out in regulations, which are to be made by statutory instrument. Subsection (5) provides details in general terms of other provisions that maybe included in the regulations, including the action to be taken by a website operator in response to a notice of complaint and the time limit for taking such action.
Section 5(6) sets out certain specific information which must be included in a notice of complaint. The notice must specify the complainant's name, set out the statement concerned, where on the website it was posted and explain why it is defamatory of the complainant. Regulations may specify what other information would need to be included in a notice of complaint.
Section 5(11) (which was also added later) provides that the defence will be defeated if the claimant shows that the website operator has acted with malice in relation to the posting of the statement concerned.
Finally, section 5(12) (which was again added later) provides that the defence is not defeated by reason only of the fact that the operator of the website moderates the statements posted on it by others.
Section 6: peer-reviewed statements
This section provides protection for scientists and academics publishing in peer-reviewed journals. The publication of a statement in such a journal is privileged, provided certain conditions are met.
Section 7: absolute and qualified privilege
This section updates and extends the circumstances in which the defences of absolute and qualified privilege are available.
Section 8: single publication rule
Until now, every publication of defamatory material has given rise to a separate cause of action which is subject to its own limitation period (the "multiple publication rule"). This has been of particular concern in relation to online material as each "hit" on a webpage creates a new publication, potentially giving rise to a separate cause of action, should it contain defamatory material.
Section 8 introduces a single publication rule. This means 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. 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. The court's discretion under the Limitation Act 1980 to extend the time period is retained.
Section 9: libel tourism
This section aims to address the issue of "libel tourism" (a term which is used to apply where cases with a tenuous link to England and Wales are brought in that jurisdiction). It applies when a defamation action is brought against a person who is not domiciled in the UK, an EU member state or a state which is a party to the Lugano Convention (section 9(1)).
The section provides that a court does not have jurisdiction to hear and determine such actions 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 place in which to bring an action in respect of the statement. This means that in cases where a statement has been published in England and Wales and also abroad, the court will be required to consider the overall global picture to consider where it would be most appropriate for a claim to be heard. It is intended that this will overcome the problem of courts readily accepting jurisdiction simply because a claimant frames their claim so as to focus on damage which has occurred in the jurisdiction only. It is anticipated that the Civil Procedure Rule Committee will be asked to consider including in the Civil Procedure Rules relevant factors for the court's consideration.
Section 10: action against secondary publishers
This section offers greater protection to secondary publishers, such as booksellers, by taking away the court's jurisdiction to hear an action for defamation brought against them except where it is not reasonably practicable for the claimant to bring the action against the author, editor or publisher.
Section 11: trial by jury
This section removes the presumption in favour of a jury trial in defamation cases.
Section 12: publication of judgment
This section gives the court the power to order a summary of its judgment to be published in defamation proceedings generally (in contrast to the provision in section 8 of the Defamation Act 1996 concerning the summary disposal of claims).
The parties are to agree the wording of any summary and the time, manner, form and place of its publication. If they cannot agree, the court will give directions.
Section 13: removal of statement
This section was introduced during the Bill's passage through Parliament. It provides that a court that has given judgment for the claimant in an action for defamation can order:
The operator of a website on which the defamatory statement is posted to remove the statement. This provision is designed to give claimants a remedy in situations where the website operator has a defence under section 5 of the Act because it did not post the statement on its website itself.
Any person who was not the author, editor or publisher of the defamatory statement to stop distributing, selling or exhibiting material containing the statement. This subsection was added after the above following concerns that without such a provision, the effect of section 10 of the Act might be that an action could not be brought against a secondary publisher who refuses to remove material from circulation in these circumstances.
Section 15: meaning of "publish" and "statement"
This section sets out definitions of the terms "publish", "publication" and "statement" for the purposes of the Act. Broad definitions are used to ensure that the provisions of the Act cover a range of publications in any medium, reflecting the current law.
The government hopes that the passing of the Defamation Act 2013, which had a turbulent passage through Parliament, will result in a more balanced and fairer law than the previous law on defamation which has long been criticised as being antiquated, costly and unfair. The introduction of a "serious harm" requirement for statements to be actionable, it is hoped, will only deter trivial claims and not inhibit people who are genuinely seeking to protect their reputation. The "serious financial loss" threshold for companies, which was agreed in the final hours of the Bill, is generally regarded as a sensible compromise aimed at discouraging businesses from using libel laws to silence their critics, although it is not clear how this will work in practice.
However, there are still a number of uncertainties in relation to some of the provisions in the Act, such as the defence in section 5 for website operators, despite it being one of the most heavily amended clauses during the Bill's passage through Parliament. It is hoped that the application of this defence will become clearer when the accompanying regulations are published and matters, such as the length of time a website operator has to respond to a complaint, will be set out.
One of the major criticisms of the Act is that it does not deal specifically with the issue of costs, which is seen as the greatest problem with defamation actions. Instead, this is regarded by the government as a matter to be dealt with by the Civil Procedure Rules Committee and as part of Jackson LJ's general review of civil litigation costs.
Defamation Act 2013.
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