An announcement from the UK justice minister has confirmed that the new Defamation Act ("the Act") will take effect from 1 January 2014.1 The Act makes major changes to existing defamation laws in the UK and will seek to curb London being seen as the preferred destination for libel tourists.
Traditionally, the London courts have seen a wide range of colourful characters ranging from academics to Russian oligarchs using the laws to fight expensive battles relating to what they view as offending libellous statements. The changes to UK defamation law will, therefore, be read with interest not just in the UK but around the world.
One of the major changes introduced by the Act will be the introduction of a "serious harm" threshold for defamation complaints: the Act provides that "a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant". As the explanatory notes to the Act state, the section of the Act introducing this concept is intended "to raise the bar" as to what the courts will entertain as a viable libel complaint.2 It is section 1 of the Act that is likely to give rise to the most judicial debate and be keenly contested in the next few years.
There is also a specific focus on corporate complainants. Section 1(2) of the Act states that "harm to the reputation of a body that trades for profit is not 'serious' harm unless it has caused or is likely to cause the body serious financial loss". As such, the Act seems to alter the balance of the Act in favour of freedom of expression rather than using libel laws to silence an organisation's critics.
The Act goes on in following sections to put the defences of truth, honesty and publication on a matter of public interest into statutory form. The corresponding common law defences of justification, honest comment and the so-called "Reynolds defence"3 are abolished by the Act. This is probably the most far-reaching change of all. In relation to the defence of "truth", the explanatory notes to the Act provide that "where a defendant wishes to rely on the new statutory defence the court would be required to apply the words used in the statute, not the current case law. In cases where uncertainty arises the current case law would constitute a helpful but not binding guide to interpreting how the statutory defence should be applied".4
Section 5 of the Act also provides a new defence against an action for defamation for the operators of websites hosting user-generated content if it was not the operator who posted the defamatory statement. However, in order for a website operator to avail themselves of this defence, they must follow a specific procedure set out in Defamation (Operators of Website) Regulations 2013 ("the Regulations"), which will come into force alongside the Act on 1 January 2014.
At first sight, this defence sounds useful; however, in practice, there are a complex series of steps which need to be carried out by the website operator within short timeframes if it is to be able to rely on the defence. Furthermore, the short timeframes (48 hours) associated with the implementation of certain of some of the steps means that the operator will need to have a dedicated system in place with people who have a good understanding of the Regulations. Inevitable time differences (for instance, where legal and compliance teams are based in other jurisdictions) will eat into the time that is available for compliance. As the new defence under section 5 of the Act comes with so many strings, we are likely to find that, in practice, a website operator would prefer to rely on the existing defences available under the Electronic Commerce (EC Directive) Regulations 2002, under which hosting intermediaries shall not be liable if they do not have actual knowledge of unlawful activity.5 Perhaps the only practical instance where the new defence may have more use is instances where the comments have been moderated by the website operator. In such an instance, the potential defences under the Electronic Commerce (EC Directive) Regulations 2002 would not be available.
Section 5(12) of the Act specifically provides that "the defence under this section is not defeated by reason only of the fact that the operator of the website moderates the statements posted on it by others".
Other significant changes introduced by the Act include the introduction of a "single publication rule"6 (whereby the cause of action accrues from the first date of publication, provided that the subsequent publications are substantially the same as the original) and the abolition of a presumption for a jury trial in defamation claims.7
One of the areas that attracted the most attention over the long and tortuous route to implementation of the Act was that of libel tourism. The press was particularly fascinated with stories of claimants who had a tenuous connection with the UK bringing causes of action in the English courts. In practice, the statistics do not seem to support the argument that libel tourism is a real problem. However, the Act limits the court's jurisdiction in defamation actions against those not domiciled in the UK or another EU member state.8
Whilst the good intentions of the legislature to reform defamation law are to be welcomed, there is some feeling that the Act and Regulations have not gone far enough, and what started off as an attempt of a "root and branch" renewal of a much-criticised and overly complex area of the law has ended with a fudging of some important issues and a new set of opaque rules.