Following Lord Lester’s hotly debated draft Defamation Bill last summer, the Government has published its draft Defamation Bill and launched a public consultation on the Bill which closes on 10 June 2011.

The draft Bill is intended to make it more difficult to sue. It also codifies and attempts to simplify complex aspects of the common law of defamation developed by case law over many years. If enacted this will not necessarily reduce the uncertainty as the courts are unlikely to resist arguments that the same common law should be considered when interpreting the statute.

The Bill largely follows Lord Lester's draft and includes his proposals to make it much harder for companies to sue. This is very worrying for all companies. Not that they want to or regularly sue. Far from it. The evil is that it removes the ability to exercise the small degree of influence that currently exists through the threat of suing.

The key proposals are:

  • The Bill requires that a statement must cause, or be likely to cause, “substantial harm” to a claimant’s reputation, for the statement to be defamatory. The explanatory notes to the Bill refer to the existence of a “threshold of seriousness” as to what is defamatory; however, it remains unclear what this will mean in practice. A corporate claimant may have to prove substantial financial loss flowing from the statement in order to bring an action, making it significantly more difficult to bring a claim.
  • “Libel tourism”, the cause of much bad press around British libel laws in recent years, is clearly addressed, as judges are expressly given discretion to decide whether England and Wales is the most appropriate jurisdiction to hear a defamation case. The explanatory notes to the Bill state that courts should consider the overall global picture of the claim, rather than focusing on damage occurring in this jurisdiction, yet it remains unclear at this stage how this would apply in practice.
  • A single publication rule (which is the rule in a number of jurisdictions, most notably in the United States) is introduced to prevent further causes of action arising for each publication of the same defamatory material by the same publisher after a one year limitation period which runs from the date of the original publication. Accordingly, a statement will no longer be considered to be re-published each time it is downloaded from the internet.
  • Defamation cases are by default to be tried without a jury, unless the judge orders a jury trial where it is considered to be in the interests of justice.

The Government’s consultation is seeking views as to whether a new court procedure is required to address “an inequality of arms in defamation proceedings” and whether restrictions should be placed on the ability of corporations to bring defamation claims. The consultation is also seeking views on additional protection for “secondary publishers” on the internet, such as internet service providers responsible for hosting third party content, either by removing liability altogether, or introducing a clearer procedure for the removal of allegedly defamatory material. It is likely that media defendants will be keen to see such restrictions and protections put into place, while corporate entities will wish to maintain their ability to protect their positions and defend their reputations.

The draft Defamation Bill consultation document was published on 15 March 2011 and can be found here. A response the consultation is due to be published in Autumn 2011.