On Tuesday 15 March 2011, the long-awaited proposals on the reform of the law of defamation were announced. The Ministry of Justice said that these "aim to bring libel law up to date, striking the balance between protecting people's right to free speech – including responsible journalism and scientific debate – from unjustified libel actions, while enabling people who have genuinely been defamed to protect their reputations. They will also explore ways to speed court cases up and cut the costs associated with defamation proceedings".
Alongside the draft Defamation Bill, a public consultation on both the proposals and other issues which have not at this stage been included in the Bill was launched. This will close on 10 June 2011.
The draft Bill does not currently seek to introduce a specific tort of corporate defamation, which would include the requirement for companies to prove actual financial loss. This was suggested by Lord Lester in his private member's Defamation Bill published last year. The consultation says it should be recognised that corporations do have reputations which deserve protection against defamatory allegations. The current indication is that the Government considers that the introduction of the other proposals set out below (and the broader proposals on civil litigation costs which are under review) are sufficient as they "should make defamation proceedings far less susceptible to manipulation by those with greater resources, whether they are companies or individuals" which "will have benefits in all types of proceedings including cases involving corporations". However, the position will not be certain until after the consultation as further views are sought on this issue (see below).
- Requirement of substantial harm
There is currently no requirement to prove actual damage as a result of the publication of a libellous statement. This proposal does not change that position as such but rather introduces a threshold before a defamation claim can be brought by providing that "A statement is not defamatory unless its publication has caused or is likely to cause substantial harm to the reputation of the claimant".
Whilst there is already case law authority for the existence of a "threshold of seriousness" and potential for trivial cases to be struck out as an abuse of process because there is so little at stake, it is not clear whether the proposal intends to introduce a higher threshold. The aim of introducing this test is to ensure that trivial and unfounded actions do not proceed.
- New statutory defences
- Responsible publication on matter of public interest
This proposal seeks to provide a defence where the defendant can show that the statement complained of is, or forms part of, a statement on a matter of public interest and that he or she acted responsibly in publishing the statement. A list of matters the court may have regard to when assessing the latter question is set out.
This is based upon the existing Reynolds and neutral reportage defences and is an attempt to make the defence clearer and more readily applicable. The expressed intention is to ensure that publications on matters of public interest are sufficiently protected so that responsible journalism can flourish and investigative journalism and the work of NGOs are not unjustifiably impeded by the threat of defamation proceedings.
This would replace the existing common law defence of justification and would be available for defendants who can "show that the imputation conveyed by the statement complained of is substantially true", which reflects the existing current law. The re-naming of the defence shows the true nature of the defence i.e. it removes any perception that the statement needs to be somehow reasonably justified in addition to being (substantially) true.
- Honest opinion
The common law defence of fair (recently re-named honest) comment would be abolished. The proposal again comprises an attempt to codify the existing principles into three "Conditions" to be met. In particular, it seeks to address the issues of the extent to which the opinion must be based on facts which are sufficiently true and the extent to which the statement must explicitly or implicitly indicate the facts on which the opinion is based. These are areas where the law has become increasingly complicated and technical.
There is no express requirement for the fact/privileged material relied upon to be indicated in the published words. Rather, the proposal is that the new test will focus on whether 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). The idea is that a fact may be expressed in or implied by the statement and that this can be applied in a flexible way.
The proposal seeks to retain the objective element that the opinion must be one which an honest person could have held rather than introducing a subjective test, as has been floated in recent times.
- Extension of statutory privilege
Clause 5 of the Bill seeks to update the law by amending the existing provisions of the Defamation Act 1996 which list the categories of publications protected by absolute and qualified privilege in certain areas. For example, absolute privilege would attach to reports of proceedings in all national courts worldwide and Schedule 1 governing qualified privilege would expressly include "a fair and accurate report of proceedings of a scientific or academic conference" (or extracts or summaries thereof) and is also to be extended to cover reports relating to any "quoted company" as defined in the Companies Act 2006 as opposed to just UK public companies.
The consultation paper also asks for views on whether it would be helpful to take the opportunity to attempt further rationalisation and clarifications since Schedule 1 is complex and difficult to interpret. The question of whether archives should be covered by qualified privilege, and how an archive could be defined, is also to be considered.
- A single publication rule
The current law has long provided that each publication of defamatory material gives rise to a separate cause of action which is subject to its own limitation period ("the multiple publication rule"). With the rise of the internet and development of online archives, this rule has increasingly come under scrutiny. Its effect in relation to online material is that each "hit" on a webpage creates a new publication which potentially gives rise to a separate cause of action, with its own limitation period.
The view taken is that this position is not suitable for the modern internet age. The majority of those who responded to the then Government's consultation on the issue in 2009 and the reports published in early 2010 (by the Culture, Media and Sport Committee and the then Ministry of Justice's Libel Working Group) all indicated that a single publication rule should be introduced.
The effect of the proposal is that a claimant will be prevented from bringing an action in relation to publication of the same material by the same publisher more than one year from the date of the first publication of the material (to the public or a section of the pubic). Publication to the public has apparently been selected as the trigger point because it is from that point on that problems are generally encountered with internet publications.
- Prevention of libel tourism
There has been much public concern expressed in recent years over the fact that defamation cases with only a tenuous link to England and Wales are being brought in this jurisdiction because of a perception that our courts are claimant-friendly and therefore the forum of choice.
Whilst there appear to be mixed views as to the extent to which libel tourism is a real problem, the Government has decided to include "proportionate" measures to specifically address this issue. The proposal is that where a defendant is not domiciled in the UK or an EU member state (or a Lugano Convention state), the court will not have jurisdiction to hear and determine the case unless it is satisfied that England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement, out of all the places where it has been published.
- Removal of presumption in favour of trial by jury
In response to widespread concerns about the right for either party to opt for trial by jury and the role that juries have to play in complicated and technical legal issues, the proposal is to remove the current presumption in favour of trial by jury. Rather, the court would retain a discretion to order jury trial where it is in the interests of justice to do so. The consultation requests views as to what factors or criteria would be appropriate to include as guidelines to assist a Judge in exercising this discretion.
Other issues for consultation
There has been much debate on other issues surrounding the law of defamation in recent years. The Government consultation also seeks views on the following areas:
- Responsibility for publication on the internet: should the law be changed to give greater protection to secondary publishers such as internet service providers, discussion forums and (in an offline context) booksellers? This is a complex area and the indication given is that evidence needs to be obtained on the problems that are currently faced and suggestions made as to how the law could best be clarified so that appropriate provisions could be included in the substantive Defamation Bill.
- A new court procedure to resolve key preliminary issues at as early a stage as possible.
- Whether the summary disposal procedure should be retained and if so what improvements should be made. In particular, should the power of the court under the summary procedure to order publication of a summary of its judgment be made more widely available?
- Whether further action is needed to address issues relating to an inequality of arms in defamation proceedings, including whether any specific restrictions should be placed on the ability of corporations to bring a defamation action.
- Whether the current provisions in case law restricting the ability of public authorities and bodies exercising public functions to bring defamation actions should be placed in statute and extended to other bodies exercising public functions.