On 1 January 2014, the Defamation Act 2013 (the “Act”), which received Royal Assent on 25 April 2013, entered into force. Prior to the Act, the law on defamation was made up of common law supported by the 1952 and 1996 Defamation Acts. The recent Act will update and codify this area of law, and in particular the way that defamatory material published online is treated. The Act’s effect is largely limited to England and Wales, though certain parts of the Act affect Scotland also.
The main provisions of the Act are as follows:
- Section 1: Serious harm. This section introduces a requirement that publication causes (or is likely to cause) serious harm, thereby raising the threshold for defamation cases. Subsection (2) provides that commercial bodies will have to demonstrate actual or likely serious financial loss.
- Section 2: Truth. Section 2 replaces the defence of justification with the simpler defence of ‘truth’ (also reflecting the current approach of the courts). Defendants may benefit from this defence where it can be shown that the imputation was ‘substantially true’, following case law which has held that defendants do not have to prove the truth of every individual word.
- Section 3: Honest opinion. Honest opinion will replace ‘fair comment’ as a defence. This reflects the current law, save that there will no longer be a requirement that the opinion is on an issue of ‘public interest’.
- Section 4: Public interest opinions. The Act will introduce a new defence for situations where publication is on a matter of public interest. Again, this reflects the approach of the courts and is both objective and subjective insofar as it affords a defence where a statement is a matter of public interest and where the defendant also reasonably believed the publication was in the public interest.
- Section 5: Operators of websites. The Act creates a new defence for the operators of websites, who did not publish the materials themselves (i.e. it is a defence where user-generated content has been defamatory). The defence will not be available where: (a) the claimant could not hold the website user responsible; (b) the defendant was notified of the publication; and (c) the defendant failed to respond to that notice in the manner prescribed by applicable regulations (published in December 2013 and described below).
- Section 6: Peer-reviewed scientific/academic journal articles. Section 6 provides a qualified privilege defence for statements made in peer-reviewed scientific/academic journal articles, provided that the statement relates to a scientific/academic matter and that it has been reviewed by the journal’s editor and a person with relevant expertise.
- Section 7: Privileged reports. The existing defences of qualified and absolute privilege for certain reports made in the public interest have been extended by the Act. The defence of absolute privilege now covers the fair and accurate reporting of court proceedings in other countries. Qualified privilege will apply to various other types of reports which are published on matters of public interest.
- Section 8: Single publication. Section 8 of the Act provides that, where a person publishes a statement to the public, the publication will be deemed to include any subsequent publications of substantially the same statement (unless the manner of publication is materially different). This ‘single publication’ rule aims to protect defendants from claims made long after the initial publication, and replaces the previous ‘multiple publication’ rule which stated that each publication restarted the limitation period. The primary reason for the single publication rule is that, until now, each time defamatory material was accessed via a website it would be deemed to be re-published and the one year limitation period would re-start. Section 8 of the Act will not however affect the court’s discretion to allow a claim to continue outside the limitation period (pursuant to s.32A of the Limitation Act 1980).
- Section 9: Actions against persons not domiciled in the UK or the EU. This provision provides that the courts of England and Wales will only have jurisdiction where it is apparent that, of all the territories in which publication occurred, England and Wales are the most appropriate. This rule is aimed at reducing ‘libel tourism’
- Section 10: Actions against persons who did not author or edit the statement. Section 10 provides that the courts may only hear actions against persons who were not the author, editor or publisher, where it is not practicable to bring an action against the actual author, editor or publisher.
- Section 11: Trial without a jury. The Act removes the presumption of a jury in defamation trials, though the court can still order the matter be decided by a jury.
- Section 12: Power of a court to order publication of judgment summary. The Act slightly extends the court’s power to order that the defendant publish a summary of its judgement.
- Section 13: Order to remove a statement/cease distribution. This section allows the court to order a website operator to remove material/cease distribution.
- Section 14: Slander and special damage. The Act repeals the Slander of Women Act 1891 and removes the previous rule whereby an action for defamation based on words which “impute unchastity or adultery to any woman or girl” did not require special damage to be proven.
In December 2013 the Government published The Defamation (Operators of Websites) Regulations 2013 (the “Regulations”) setting out the notice and take-down procedures which website operators must comply with in order to avail themselves of a defence under the Act. Under the Regulations, website operators will have 48 hours following a notice of complaint to act. The first step will be to notify the poster (if the poster cannot be contacted the content should be removed). The poster then has five days to respond and, unless the poster provides an adequate objection to removal, the operator will have a further 48 hours in which to remove the content.
The Act provides welcome reform to an area of law which has become increasingly outdated in light of recent technological and societal changes, particularly as the amount of defamatory material published online has increased with the rise of user-generated content.
The majority of the Act reflects the court’s current approach in defamation cases. In addition to the new defence being introduced for website operators, perhaps the most drastic change is the reform of the multiple publication rule, which had made it very difficult for defendants to benefit from the relatively short one-year limitation period contained within Section 4A of the Limitation Act 1980. The reason for this was that the accessing of online material was deemed to constitute ‘publishing’ for the purposes of a defamation claim and, consequently, the limitation period within which to bring a claim would run from the last time material was accessed.
The single publication rule does not mean that republishing cannot constitute a new cause of action; however, where the content and method of the publication are sufficiently similar (for example, the accessing of a news story from a website), limitation will run from the date the statement was first published.