Lord Lester’s much heralded Defamation Bill (see our earlier post) has been published today.  This is Private Members’ Bill, introduced by the Lib Dem peer in an attempt to assist the Government in its libel reform proposals.  There is a Press Release which tells that the Bill

“seeks to reduce the chilling effect on freedom of expression and recourse to self-censorship that results from the vagueness and uncertainty of the present law. It also aims to encourage the free exchange of ideas and information, whilst providing an effective and proportionate remedy to anyone whose reputation is unfairly damaged”.

In this post we will provide a brief “instant” commentary on the main provisions of the Bill.  We may have missed some subtleties and difficulties on first reading for which we apologise in advance.  The Bill contains 22 clauses and two Schedules, with five principal Parts: Defences, Statutory privilege, Publication, Cause of Action and Trial by Jury.  At first reading many of these provisions seems to be, in the words of the Bill’s supporters “moderate”.  They involve sensible “tidying up” and codification of the present law.   There are however some clauses which are apparently more radical – and more problematic.

Part 1 deals with Defences. For what we are assume are presentational reasons clause 1 deals not with “truth” – which might be thought to come first – but with the defence of “responsible publication on matters of public interest”.   Contrary to Lord Steyn’s suggestion in his lecture yesterday, this places the burden of proof on the defendant to show two things:

(a)  that the words were published “for the purposes of or otherwise in connection with, the discussion of a matter of public interest”; and

(b)  that the defendant acted responsibly in making the publication.

Clause 1(3) says that responsibility should be assessed “having regard to all the circumstances” and clause 1(4) sets out a series of “factors” to be considered.  Clause 1(5) provides a “reportage defence”.   This is, in short, a statutory recasting of the Reynolds defence and one which appears to make no substantive difference to the pre-existing law.   This means that the virtues (such as they are) and vices (which are well known) of the Reynolds defence remain intact – it remains complex and costly, focusing on the quality of journalism rather than on truth.  In short, it remains unsatisfactory for both claimants and defendants.

Clause 2 is cosmetic – renaming the defence of “fair comment” as “honest opinion”.  Clause 3 sets out to define the circumstances in which this defence applies.  This appears, at first reading, to be a very good attempt to reflect (with minor changes) the common law position.  Once again, it will make little difference – although it will, of course, make litigation more complex in the first instance as the Courts work out the precise parameters of the new definition.

Clauses 4 and 5 undertake the same exercise for the defence of “justification”, renamed “truth” (curiously falling into the libel lawyers’ loose talk of treating justification as being about proving the truth of “meanings” rather than being about proving the truth “allegations”).   The burden of proof remains on the defendant.  The same points can be made in relation to these clauses as apply to clauses 2 and 3.

Part 2 is headed “Statutory Privilege”. It does not offer a comprehensive code.  Clause 6, dealing with absolute privilege,  reproduces the provisions of section 14 of the Defamation Act 1996 – adding certain other bodies the reports of which are subject to absolute privilege.  Clause 7 provides for absolute privilege for reports of Parliamentary proceedings – replacing the much criticised Parliamentary Papers Act 1840.

Clause 8 mirrors section 15 of the Defamation Act 1996, setting out various categories of reports and statements subject to qualified privilege in a Schedule.   This substantially follows the 1996 Act – although with some clarification and some new categories of qualified privilege

Part 3 deals with “Publication”.  Clause 9 deals with responsibility for publication and provides a new “take down defence”.  If someone is a “facilitator” (that is, a person concerned only with transmission or storage but with no control over content) then he has a defence unless the claimant shows that he has given notice of the defamatory publication and the defendant has not complied with it.  This is an interesting proposal which is worthy of serious consideration.

Clause 10 deals with “multiple publications” – and provides that the cause of action accrues on the “first occasion on which the publication is made available to the public”.  This reverses the common law rule that each new publication gives rise to a new cause of action.  Once again, this is seems to us to be a proposal which merits serious consideration.

Part 4 is headed “Cause of Action” and gives rise to far more problems.  Clause 11 provides that a body corporate must show that the publication “has caused or is likely to cause, substantial financial loss”.    It is noteworthy that, in contrast to the position in other jurisdictions, no exception is made for small corporations or non-trading corporations.  The reputation of such bodies is treated as being a financial matter and nothing more: charitable corporations or NGOs with no “business” can, apparently, be defamed without redress.  This appears problematic.  The reference to a publication being “likely to cause” financial loss will, inevitably, lead to argument and litigation – increasing costs and complexity. It seems to us that, without qualification, this proposal is not a sensible one.

Clause 12 seems to us to be the place where the Bill starts to go off the rails.  It provides that

“The court must strike out an action for defamation unless the claimant shows that

(a)        the publication … has caused substantial harm to the claimant’s reputation; or

(b)        it is likely that such harm will be caused …” (emphasis added)

In other words there is a mandatory strike out unless “substantial harm” can be demonstrated.   This means that every libel action will have an additional – costly – stage where there is an argument about whether “substantial harm” has been caused.   It is possible that this clause makes no difference to the existing law of “abuse” but it is going to take a lot of litigation to find out.  Many questions arise.  What is “substantial”?  What evidence can be received on the issue?  Will every libel claimant have to marshall a body of evidence to show “substantial harm”?  Will every libel case begin with a mini-trial on the “substantial harm” issue?  Is “substantial harm” different from the “real and substantial tort” test set out by the Court of Appeal in Jameel v Dow Jones ([2005] QB 946) – which has been applied in a number of recent cases (see our post here)?  It seems to us likely that this provision will have the very opposite effect of that which is intended:  litigation will become more costly and more complicated.  This is a positively bad idea.

Clause 13 is intended to deal with “libel tourism”.  If the same (or similar) words have been also been published outside the jurisdiction then

“(2) No harmful event is to be regarded as having occurred .. unless the publication in the jurisdiction can reasonably be regarded as having caused substantial harm to the claimant’s reputation having regard to the extent of publication elsewhere”.

This provision comes at the bottom of page 6 of the Bill.  We turned the page looking for another sub-clause for some clarification but there is none to be found.  What does all this mean?  Let’s put aside an obvious problem. This provision, in practice, will apply to every libel action – English newspapers are published outside the jurisdiction, internet publication is worldwide.    But what do the words quoted above from clause 13(2) actually mean?  It might be thought that damage is always caused to a claimant’s reputation in the jurisdiction by publication in the jurisdiction – but the provision is obviously meant to do something more.  It is not clear what.  This provision is also a recipe for confusion and litigation. It is a point which can (and will) be taken in every case.

The provision also appears to be in conflict with EU law. As Eady J said in his Justice Conference lecture in December last year, in relation to the debate on libel tourism ;

“We are bound by the decision of the European Court of Justice in Shevill v Presse Alliance [1995] 2 AC 218, which had been referred by the House of Lords three years earlier, to the effect that any citizen of the European Union can sue for libel in any jurisdiction (including multiple jurisdictions) where his or her reputation has been damaged. Any reform would need to be compatible with that principle.”

Part 5, deals with trial by jury. The proposals are contained in clauses 14 and 15. The idea is to remove the presumption of trial by jury in libel cases.   There are serious arguments to be had on both sides of this point.  However, libel jury trials are, these days, extremely rare – with only a handful every year – so the practical relevance of this provision is limited.

Overall: Our overall verdict on first reading is that the Bill contains some solid work and interesting proposals.   But it is not radical or wide ranging and does not “rebalance” or “recast” the law of libel.  If anything it will add a further layers of complexity and increase costs.   It is not a substitute for a thoroughgoing review of the existing law.