The “Explanatory Notes” to Lord Lester’s Defamation Bill have been made available.  Such notes are mandatory for all public acts which result from Bills introduced into either House of Parliament by a Government Minister since 1999.  The text is usually produced by the Government Department responsible for the subject matter of the Act. The purpose of Explanatory Notes is to make the Act of Parliament accessible to readers who are not legally qualified and who have no specialised knowledge of the matters dealt with. Explanatory Notes are optional for Private Members Bills but Lord Lester’s team have now prepared 41 page Explanatory Notes in order to

“assist understanding of the Bill against the background of existing law, and to explain the nature of the changes the Bill seeks to make in reforming the law, and the reasons for those changes” [1].

The notes begin with a not uncontroversial 14 point summary of the tort of defamation [5].  The aims of the Bill are then summarised as follows:

i) strike a fair balance between private reputation and public information as protected by the common law and constitutional right to freedom of expression;

ii) modernise the defences to defamation proceedings of privilege, fair comment, justification, and innocent dissemination, in accordance with the overriding requirements of the public interest;

iii) require claimants to demonstrate that they have suffered or are likely to suffer real harm as a result of the defamatory publication of which they complain;

iv) require corporate claimants to prove financial loss (or the likelihood of such loss) as a condition of establishing liability;

v) encourage the speedy resolution of disputes;

vi) make the normal mode of trial, trial by judge alone rather than by judge and jury;

vii) enable the Speaker of either House of Parliament to waive Parliamentary privilege as regards evidence concerning proceedings in Parliament; and

viii) modernise statutory privilege.

It is pointed out that the bill does not deal with costs, damages or misuse of private information [8].  It does not, of course, deal with “meaning” or other aspects of claims but instead focuses almost exclusively on “defences”. The Notes set out the some background to defamation reform from the 1938 Committee on reform of the defamation law through to the Libel Reform campaign and the Libel Working Group ([10] to [44]).  Lord Lester’s principal advisors are identified as Sir Brian Neill and Heather Rogers QC and it is recorded that there was an advisory group consisting of libel reform campaigners and media in house lawyers (but no representatives of claimant interests) [45]. The Notes then go through the Bill, clause by clause, setting out the background to the proposals and the reason for them.  Paragraphs 47 to 60 deal with responsible publication, paragraphs 61 to 71 with honest opinion, paragraphs 72 to 83 deal with “truth” and so. At the end of the Notes is a section headed “Compatibility with Convention Rights and Freedoms” ([173] to [186]).   Perhaps unsurprisingly, Lord Lester expresses the view that the Bill is compatible with Convention rights.   He is, however, reluctant to accept that the right to reputation is a Convention right (despite the very clear Convention and domestic case law on the point, see our post here).  At the recent Westminster Legal Policy Forum he made it clear that it was not his view that “reputation and free speech must be equally balanced in all cases“. The Notes say this:

The Bill has been prepared on the basis that the right to have one’s good reputation protected by law is a fundamental civil right, and that, within the wide area of discretion allowed to the Contracting States in the way they give effect to the Convention, a fair balance must be maintained between the civil right to freedom of expression, including public debate, discussion and information, and the civil right to such protection. In restating the existing defences, the Bill’s preparation has been informed by the approach adopted by the European Court of Human Rights in interpreting and applying Article 10 of the Convention. [181]

It is not clear whether in describing reputation as a “civil right” it is intended to suggest that it is not a Convention right – although the reference to freedom of expression as a  “civil right” may suggest that it is accepted that they are rights of the same type. These Notes repay careful reading and are a welcome addition to the debate on the Defamation Bill.