The Defamation Act 2013 introduces a higher threshold for those alleging defamatory content and new defence for website operators.

The Defamation Act 2013 came into force in England and Wales on 1 January 2014. The Act increases the difficulty for organisations bringing defamation actions by introducing a new threshold for defamatory content, although its aim is to protect the right of free speech.

The Act aims to adapt to today’s online environment and protect businesses operating online. This is being achieved by three key measures:

  • the serious harm requirement for defamatory material
  • the single publication rule
  • the operators of websites defence

New threshold for defamation

Defamation is any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held. There is a now an additional requirement, a higher threshold for complainants bringing a defamation claim. This is intended to reduce the number of frivolous libel claims and wasted court time.

Depending on the type of claimant there are now two thresholds:

  • individuals must show that the publication caused or is likely to cause serious harm to the reputation of the claimant
  • organisations must show "serious harm" in that the publication caused or is likely to cause it serious financial loss.

Essentially for businesses, this new standard increases the difficulty for an organisation to bring a defamatory action. There has already been a lot of debate on how an organisation will prove the "serious" financial loss and the degree of "likelihood" required if future loss is expected. Some commentators suggest that an impact equivalent to a drop in share price will be required.

Those facing a defamation claim may insist on seeing evidence of serious financial loss before conceding any claims. Organisations considering bringing a defamation action need to carefully consider how to prove that there has been, or will be, a serious financial loss as a result of the defamatory material.

At the moment, businesses have little option but to wait and see how the Courts interpret the thresholds of "likelihood" and "seriousness".

Single Publication Rule

The Act also introduces a significant reform which prevents repeated claims on the same publication. This reform is known as the single publication rule.

The previous rule meant that each new hit on a webpage was regarded as a new publication and therefore the complainant’s cause of action was continually renewed as long as the material was online.

Under the single publication rule, the date of the first publication is regarded as the first and only publication date as long as subsequent publications are "substantially the same". The situation is unchanged regardless of how many times the statement is re-published.

This does not altogether absolve website hosts from the risk that a statement may no longer give rise to multiple cause of action. In determining whether or not a publication is substantially the same or different, the Act states that the court may take into account the level of prominence that a statement is given and the extent of the subsequent publication.

This new rule will be a welcomed relief for website hosts containing large archives of material that search engines may continue to identify. Nonetheless, it is still wise to remove older content that could result in brand damage if found to be defamatory.

Operators of Websites Defence

One of the most substantial changes is the introduction of the "Operators of Websites" defence. The Act now provides a defence to a defamation claim where the operator of the website can show that it did not post the defamatory material.

In the past, most cases of defamation have been brought against website operators or companies backing websites rather than the anonymous poster. Now, the Operators of Websites defence allows for the website operator to shift the action onto the original author of the material.

Where the website operator receives a Notice of Complaint with all relevant information about the published material which the complainant thinks is defamatory, the operator has a defence if certain statutory procedures are met:

  1. The operator must contact the person who posted the offending statement within 48 hours of receipt of the Notice of Complaint.
  2. The operator must contact the person who posted the offending statement within 48 hours of receipt of the Notice of Complaint.
  3. The operator must acknowledge receipt of the Notice of Complaint within 48 hours of receiving it and confirm that the poster has been notified of the Notice of Complaint.
  4. The poster has five days within which to respond to the operator, starting the day after the Notice of Complaint was sent to the poster. If the poster fails to respond, the operator must remove the statement.

While this defence is an encouraging development for website operators, the benefit to them will depend on how stringently the courts apply the Act’s requirements in practice. To maximise the protection offered by this defence, website operators should set up and publicise a designated email address for complaints and make available online a form to use when making a complaint. It also needs to put in place procedures to ensure that it can quickly react to a complaint and forward it to the poster of the offensive material.

Other Defences

The previous common law defences of "justification" and "fair comment" have been erased and replaced with statutory defences.

The justification defence has now been replaced by the defence of "truth". This defence will apply if the defendant can show that the assertion is substantially true in nature. The fair comment defence has been replaced by the defence of "honest opinion". This defence largely codifies the courts application of the fair comment defence, however, the defence no longer requires the publication to be on a matter of public interest.

The Act has now introduced a specific statutory defence for publications on matter of public interest. This defence codifies and replaces the common law defence widely referred to as "Reynolds defence".

Libel Tourism

The Act introduces a new provision in order to address the widely criticised issue of libel tourism in the United Kingdom. The Act now states that the court does not have jurisdiction to hear and determine an action unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring the action.

While the provisions are encouraging developments, the impact of the Act on businesses and individuals will ultimately depend on how stringently the courts apply the requirements and the principles surrounding each provision.