The Defamation Act 2013 (the “Act”) came into force on 1 January 2014. Following our previous e-bulletin setting out the key changes introduced by the Act, we now take a look at how the Act has developed and been applied over the last two years.
- Issues considered by the courts
- What impact has the Act had on claims in the UK?
- What further developments do we expect to see in the future
- Practical tips
1. Issues considered by the courts
Since the introduction of the Act, the following issues have been addressed by the courts:
- Serious harm – the High Court in Lachaux v Independent Print Limited & Ors  EWHC 2242 (QB) clarified the “serious harm” requirement in section 1(1) of the Act. It is for the claimant to prove that, on the balance of probabilities, a statement complained of has caused or will probably cause serious harm to the claimant’s reputation. A cause of action will remain incomplete until serious harm is caused or becomes probable (see our article from August 2015 for more information). Both Lachaux and Cooke v MGN EWHC 2831 (QB), however, have noted that serious harm to the claimant’s reputation may be inferred by the Court depending on the nature of the statement made about him/her and its audience. Additionally, Lachaux clarified that a claimant can be defamed to individuals not yet known to the claimant.
- Serious financial loss – section 1(2) of the Act requires a body that trades for profit to show that a defamatory statement has caused or is likely to cause the body “serious financial loss”. In the case of Brett Wilson v Person(s) Unknown, Responsible for the Operation and Publication of the Website www.solicitorsfromhelluk.com  EWHC 2628 (QB), a small law firm lost a potential instruction as a result of defamatory comments. With the judge taking into account the size of the firm and the value of the lost instruction, the serious financial loss threshold was deemed met. This suggests that the specific facts of each case will be considered in the round.
- Effectiveness of an apology – a defamatory statement may become non-defamatory following “a prompt and full retraction and apology” (Lachaux). This was first set out in Cooke, which established that an apology could minimise or eradicate the serious harm caused by a defamatory statement.
- Jurisdiction – section 9 of the Act aims to prevent “libel tourism” by providing that where a defendant is not domiciled in the UK, a Member State or a state that is party to the Lugano Convention, the court does not have jurisdiction unless satisfied that of all of the places the statement complained of has been published, England & Wales is clearly the most appropriate place to bring an action. Section 9 was considered for the first time in Nandi Ahuja v Politika Novine I Magazini D.O.O and others  EWHC 3380 (QB). Tugendhat J held that in order to determine whether England & Wales is the most appropriate forum, the court will consider:
- the proportion of times that the article was published in England and Wales as opposed to elsewhere;
- the amount of damage to the claimant’s reputation in England and Wales compared with elsewhere;
- the extent to which the publication was targeted at a readership in England and Wales compared with elsewhere;
- whether there was reason to think that the claimant would not receive a fair hearing elsewhere; and
- the convenience of witnesses and the relative expense of suing in different jurisdictions.
The court did recognise, however, that section 9 places a heavy evidential burden on the claimant, as it requires the claimant to provide evidence of damage in all jurisdictions where it has a reputation, to enable the court to decide the relative merits of bringing proceedings in a particular country.
- Trial by jury – section 11 of the Act removes the presumption of a trial by jury in defamation cases unless the court orders otherwise.Yeo MP v Times Newspapers Ltd  EWHC 2853 (QB) was the first case under the Act in which a judge refused to accede to an application for a trial by jury. It was held that where a case involves a public figure, a trial by jury will only be appropriate where there is a risk that a judge might show involuntary bias towards a party based on its status or rank.
- Public interest defence – the public interest defence under s. 4 of the Act was considered in Yeo v Times Newspapers Ltd  EWHC 3375 (QB). This case followed the principle in Jameel (Mohammed) v Wall Street Journal Europe Sprl  UKHL 44, that a publication would be deemed to be in the public interest where (a) the subject matter of the publication as a whole was a matter of public interest; and (b) if so, whether the inclusion of the defamatory statement was justifiable.
2. What impact has the Act had on claims in the UK?
The most notable impact of the Act has been the significant fall in defamation cases in the UK since its introduction. This suggests that UK legislators have been somewhat successful in their aim to reduce “libel tourism” or “forum shopping”. The introduction of the serious harm requirement, by making it more difficult to bring a successful claim, has resulted in fewer trivial defamation cases making it to court. Figures published at the end of 2015 show that the number of defamation cases in the UK fell by 27 per cent in the last year, reaching the lowest number since 2008/09. Interestingly, but not surprisingly, whilst overall defamation cases has fallen, there has been an increase in cases relating to social media. It is expected that the number of cases related to posts on Facebook and Twitter, for example, will continue to rise as claimants see the potential for damage to be high given that such posts can be shared widely and quickly.
3. What further developments do we expect to see in the future
Given that the Act has not been in force for very long, there remain issues that need clarification by legislators or the courts. Amongst others, we expect to see further developments on the following:
- Further consideration the application of section 1(1) and the “serious harm” assessment. In particular, this is likely to occur as The Evening Standard and The Independent have sought leave from the Court of Appeal to appeal the decision in Lachaux.
- There has been criticism of the precedent set by Cooke andLachaux in relation to the effectiveness of an apology in mitigating the effect of a defamatory statement. Some critics have argued that harm will often already have been caused by the time that an apology, no matter how sincere, is published. In addition, there will be some readers who read the original article, but not the apology. With the increasing use and advancement of social media and technology which allows published material to reach a global audience within a matter of minutes, one might expect further discussion in the courts as to the level of mitigation that an apology can achieve.
- There have not been any cases in the past two years that have fully examined the “honest opinion” defence in s.3 of the Act, which abolished the old common law defence of “fair comment”. Although the issue did arise in Donovan v Gibbons  EWHC 3406 (QB), the judgment here was largely based on the facts of the case. As with the pre-Act position, it remains unclear as to how one would determine whether a statement is one of fact or one of opinion, and the difficult task of making this determination is still left to the judge presiding over the case.
4. Practical tips
In light of the issues discussed above, a few basic tips for those involved in defamation claims might be:
- Consider whether the harm you have suffered due to a defamatory comment is serious enough to bring a successful claim;
- Ensure that all employees are aware of their responsibilities in relation to social media posts made on behalf of the company as a retraction of any defamatory posts may not be enough to prevent a successful claim being brought against you; and
- Those with reputations in multiple jurisdictions need to consider the costs that may be incurred to prove that England and Wales is the appropriate forum to bring a claim, particularly if the Defendant is not domiciled in the UK or a Member State.