The Government has launched a consultation on the reform of defamation law in England and Wales, with a draft Bill that codifies many of the existing common law rules. This Bulletin contains a brief overview of the key proposals in the draft Bill. Further updates will look at these changes in more detail, and also changes that are not in the Bill but which the Government has opened up for consultation.

Clause 1 – The need to show “substantial harm

Claimants will need to be able to establish that the publication caused, or is likely to cause, “substantial harm” to the claimant’s reputation. Note that this test relates to damage to reputation, not simply upset caused to the claimant, or hurt to feelings.

This is an important change. At present, if a claimant can establish that words published are defamatory of him, he does not have to show any damage at all. This means that claimants can recover damages even if their reputations have not, in fact, been damaged.

In Thornton v Telegraph1 Mr Justice Tugendhat made clear that the existing common law requires that there is a “ threshold of seriousness” that claims must pass, so as to exclude trivial claims.  

Clause 1 should help to ensure that this principle is clearly understood by potential claimants and applied by the courts in all cases. The Bill does not say what factors will be taken into account when deciding whether a publication caused substantial harm, but it is likely to include the number of people exposed to the material, the type of people and the seriousness of the allegations. In theory, the court could also take into account general bad reputation of a claimant.

Clause 2 – The statutory defence of “responsible publication on matter of public interest

There will be a new defence if a defendant proves that the statement (i) is, or forms part of, a statement on a matter of public interest and (ii) the defendant acted responsibly in publishing the statement. The new defence is intended to apply to statements of fact, inference and opinions.

There is a non-exhaustive list of factors for the court to take into account when deciding whether a defendant has acted responsibly, which include the nature of the publication and whether the defendant sought the claimant’s views. The proposals do not require content organisations to comply with their regulatory codes (such as the PCC and Ofcom codes). This is sensible, particularly since most content published today is online by associations, groups and individuals not covered by a regulatory code.

This defence is not itself a “privilege defence” but it is similar to the current Reynolds (responsible journalism) privilege defence. That defence will still exist (it is not being repealed), but the new defence will apply to everyone, not just the media.

There is a also a codified “reportage” defence, to allow a defendant to publish an accurate and impartial account between the claimant and another person.

Clause 3 – The statutory defence of “truth

The common law defence of justification will be abolished. The defence of truth will apply where a defendant can show that the imputation conveyed by the statement is substantially true. It seems likely that the defence of truth will operate in broadly the same way as the current defence of justification.

Clause 4 – The statutory defence of “honest opinion

The common law defence of fair comment will be abolished. The new defence of “honest opinion” takes its place. This provides a defence where a statement of opinion is expressed on a matter of public interest and, crucially, that an honest person could have held the opinion on the basis of a fact which existed at the time the statement was published or an earlier privileged statement.

Any relevant fact or facts will be enough and it will not be necessary for the defendant to prove the truth of every statement. Nor does it appear that the comment must explicitly or implicitly indicate the facts on which it is based.

The test will be an objective one – the court will be concerned with whether an honest person could have held the opinion, not whether the person making the statement believed his opinion was justified by the facts. Indeed, it appears that the person making the statements doesn’t actually need to have knowledge of the facts. The defence is only defeated if the claimant shows that the defendant did not hold the opinion.

Clause 5 – the statutory defence of “privilege

The categories of statutory “absolute privilege” are to be extended to include categories such as fair and accurate reports of proceedings before courts outside of the UK.

The categories of statutory “qualified privilege” are also to be extended. Additional categories include fair and accurate summaries of official documents; fair and accurate reports of scientific conferences; and reporting meetings of international public companies.

Clause 6 – A single publication rule

This is another important change, particularly with regards to the internet. Claims for defamation need to be brought within one year of publication, known as the limitation period. Before the internet, this rule proved straightforward – newspapers and broadcasters knew that they had a year after publication in which they could be sued. With the internet, there is a fresh act of “publication” each time that material is accessed, meaning that claims can be brought many years after first publication.

The new “single publication rule” provides that for the purposes of limitation, the date of publication is the date on which material is first made available by a publisher to the public. There are two main conditions:

  • The rule only applies where the same person is responsible for the initial and subsequent publications, so it would not protect the republication of a book by a different publisher, or a website re-publishing material taken from another site.  
  • The rule only applies where the material re-published is substantially the same as that published originally. If the material has been edited significantly, its re-issue will constitute a fresh act of publication.  
  • The court will retain its discretion to allow proceedings to be brought after the expiry of the limitation period where justified on the facts, for example where a claimant can show that he has only just become aware of the material’s existence.  

Clause 7 – libel tourism

Where a defendant is based outside of the EU, and a small number of other countries, the court will no longer have jurisdiction to hear a claim 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 jurisdiction in which to bring an action in respect of the statement. The Government has not set out a list of factors to take into account when deciding on the most appropriate jurisdiction, but it will certainly include the number of readers in England and Wales compared to elsewhere.

This clause does not affect claims against EU defendants. The position will remain that claimants can sue EU defendants in the defendant’s Member State for all damage caused in the EU; or they can sue the defendant in each EU Member State for the damage caused in that state.

Clause 8 – removal of presumption in favour of jury

The current rule is that parties have a right to ask for a jury trial “unless the court considers that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury”.

Clause 8 removes the presumption in favour of a jury trial. There will not be a jury trial unless the court considers that this would be in the public interest. The Government is considering whether to introduce guidelines to assist the court in determining these issues.

Other issues

In a future bulletin we will look at the other issues that the Government has opened up for consultation, which are potentially much more significant than those identified above. Issues raised include:

  • Responsibility of ISPs and web hosts for internet publication  
  • The future of the innocent dissemination defence under section 1 of the Defamation Act 1996  
  • Amendments to the summary disposal procedure, and powers for the court to order publication of its judgments  
  • Changes to the Civil Procedure Rules to allow for more effective (and speedy) resolution of cases  
  • The extent to which corporations and public authorities should be allowed to sue  
  • Whether the ‘special categories’ of claimant in a slander action, who can sue without proof of special damage, should be retained, for example people suffering from venereal disease and leprosy.