After all the hype and hyperbole, the Ministry of Justice has finally published the draft Defamation Bill. The bill is in two parts for consultation – consultation on draft measures set out in the proposed bill, and consultation on a list of other issues which have not currently been included in the draft.
The bill is no radical rethink of the current law, the clear focus of the bill is to codify existing caselaw into statute.
A grey area in the current law which has not been addressed by the new bill is in the application of the law of defamation to the internet. Clearly much of the existing law was formed before the existence of the internet but few of the draft provisions take the opportunity to update this area of the law. It is listed as an issue for consultation but it appears unlikely that the final bill will do much to change the way the law is applied to the internet.
In this article we look at some of the key provisions and some of the gaps in the existing law which the bill has failed to address – particularly in its application to the internet.
The biggest problem with the existing law is that the right to a reputation has become a privilege only of the very rich. Defamation claims are notoriously difficult and expensive to litigate. Although this problem is listed as one of the issues for consultation, the new bill does little to address this, although “officially” abolishing jury trials of defamation claims – noting that in practice very few claims have been heard by a jury in recent years.
In the short term it is likely that defamation claims will be even more lengthy and expensive whilst the courts attempt to interpret and apply the new provisions.
However clause 1 of the bill requires claimants to show that a statement has caused them substantial harm. The former position was that harm to the claimant was presumed in libel cases, leading to the risk that many trials can produce an award of a very small or “nominal” sum in damages, but still produce a huge amount of legal costs. This is best exemplified in the first ever award for damages arising from claims made on Twitter for £3,000 against a costs award of £50,0001.
The bill clearly attends to this criticism, however there is no guidance on what constitutes substantial harm. Similarly, the inevitable effect of the requirement to show substantial harm will be frontloading of costs which will increase rather than reduce the claimant’s costs.
Ironically the proposed provisions requiring large corporations to prove financial loss (aimed at leveling the playing field) have been scrapped on the basis that they would have led to frontloading and a resultant increase in costs.
Access to justice may be yet further restricted by the Jackson reforms which are set to abolish success fees and ATE insurance premiums – key elements in making litigation affordable to claimants.
So-called Libel Tourism – where claimants with little connection to this jurisdiction bring their claims here in order to benefit from our defamation laws – has been a politically hot topic recently. Nick Clegg called the UK “the number one destination for libel tourism”. In fact this is a gross overstatement since in reality, only a tiny proportion of libel litigation dealt with through the UK courts has involved overseas litigants. However, under the new bill, a court must be satisfied that, of all the places in which the statement complained of has been published, England and Wales is the most appropriate place to bring an action. Our view is that the application of this clause in an age of global businesses and the internet may be tricky and will give rise to some interesting (but expensive) judgments on interpretation.
The Internet – slander or libel?
The current law divides defamation into libel (the written word) and slander (verbal). The practical difference between libel and slander is that the claimant must prove financial loss to succeed in a claim for slander whereas for libel the injured party must only show that he has suffered damage to his reputation. The internet encompasses many modes of publication and there has been uncertainty about whether some of those modes, for example bulletin boards, are insufficiently permanent to be considered libels. In Smith v ADVFN2 it was held that bulletin boards should be treated as slander because of their transitory nature – more akin to a conversation in a pub. The same might be said of chat room postings and other transient messaging like Twitter. However this judgment was much criticised since it ignored the fact that although the method of posting may be transient, the postings themselves form a permanent record (unlike a verbal conversation).
The new bill does not address this key issue or even list it as an issue for consultation therefore this is likely to continue to be a grey area of application and interpretation of the new law.
The single publication rule
One internet issue that is addressed by the draft bill is the multiple publication rule. As the law currently stands, each publication of a defamatory statement gives rise to a new cause of action and, it follows, a new limitation period (a claimant has one year within which to bring his claim from the date of publication). The application of the current law to the internet means that every time there is a ‘hit’ on a webpage it creates a new publication. This is replaced by a single publication rule which means that the limitation period will run from the date of first publication. If however, the statement is taken up and republished by a new publisher or in a new format, this will constitute a new publication and give rise to a new cause of action. This is a sensible and welcome change to the existing law.
No new protection for ISPs
As the law currently stands, an ISP that has been put on notice of a defamatory statement can be liable as a publisher if it fails to take appropriate action to remove the posting or comment. This is an onerous burden for ISPs and a key impediment to freedom of speech on the internet since ISPs tend to err on the side of caution and remove immediately on receipt of a complaint (regardless of its merits) in order to avoid potential liability as a publisher of a defamatory statement. This is in contrast to the position under United States’ law in which ISPs are considered merely to disseminate information and are not therefore held responsible for defamatory publications.
In conclusion, the draft bill looks likely to pave the way for a missed opportunity statute. The draft provisions do little more than codify existing caselaw and it remains to be seen how many of the list of issues for consultation will actually make it to the statute book. The uncertainty around the application of defamation law to the internet has barely been addressed and is certain to give rise to expensive litigation on interpretation.