As mentioned in our earlier post, the Government has today launched its Consultation on a new draft “Defamation Bill”, following on Lord Lester’s 2010 private member’s version. The new bill contains few surprises, adding little to its “private predecessor” and removing two controversial clauses, relating to ISPs and corporations. It deals with eight main areas: “substantial harm”, the defences of public interest, truth, honest comment and privilege, “single publication”, libel tourism and trial by jury.
Provisions of the Bill
The draft bill contains 9 clauses, each of which is discussed and explained in the accompanying Consultation Paper and Explanatory Notes. This is a brief summary:
Clause 1 provides for a “substantial harm” test as a pre-condition for any libel claim:
“A statement is not defamatory unless its publication has caused or is likely to cause substantial harm to the reputation of the claimant”.
It is unclear whether this adds anything to the “threshold of seriousness” which Tugendhat J identified in the common law in Thornton v Telegraph Media Group Ltd ([2010] EWHC 1414 (QB)). The consultation states that, on balance it is considered that there is merit in legislating to remove the scope for trivial and unfounded actions succeeding.
Second, the Draft Bill deals with “defences”. For what we are assume are presentational reasons this begins not with “truth” – which might be thought to come first – but with the defence of “responsible publication on matters of public interest”. Clause 2 places the burden of proof on the defendant to show two things:
(a) that the statement complained of is, or forms part of, a statement on a matter of public interest”; and
(b) that the defendant acted responsibly in publishing the statement complained of.
Clause 2(2) says that in determining whether the defendant acted responsibly, the matters which the court may have regard to include”
(a) the nature of the publication and its context;
(b) the seriousness of any imputation about the claimant that is conveyed by the statement;
(c) the extent to which the subject matter of the statement is of public interest;
(d) the information the defendant had before publishing the statement and what the defendant knew about the reliability of that information;
(e) whether the defendant sought the claimants views on the statement before publishing it and whether the publication included an account of any views the claimant expressed;
(f) whether the defendant took any other steps to verify the accuracy of the statement;
(g) the timing of the publication and whether there was reason to think it was in the public interest for the statement to be published urgently;
(h) the tone of the statement (including whether it draws appropriate distinctions between suspicions, opinions, allegations and proven facts).
Clause 2(3) provides a “reportage defence”: a defendant is treated as having acted responsibly if the statement was published as part of an “accurate and impartial” account of a dispute between the claimant and another persons.
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. There is no reference to the “source” of the statement but the non-exhaustive list does include the question as to whether the statement includes the claimant’s views. This re-definition of the defence 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 3 renames the defence of “justification” as “truth” – with the burden remaining on the defendant. It is substantially cosmetic.
Clause 4 performs the same exercise for the “common law defence of fair comment” – renaming it, “honest opinion” (despite the fact that, in Spiller v Joseph the Supreme Court have already renamed it “honest comment” – see our post here). The clause sets out to define the circumstances in which this defence applies.
Clause 5 deals with privilege, making certain minor amendments to the Defamation Act 1996 in this regard. The consultation raises the question as to whether there should be more “wholesale” amendments in this area.
Third, the Bill sets out a “single publication rule”. Clause 6 provides that the cause of action accrues on the “first publication” of a statement ot the public. This reverses the common law rule that each new publication gives rise to a new cause of action. This means that subsequent publications of the same (or substantially the same) statement (for example on the internet) do not give rise to a new cause of action for limitation purposes.
Fourth, the Bill deals with libel claims brought by non-EU nationals – the extremely small number of so-called “libel tourism” claims. Clause 7 is headed “Action against a person not domiciled in the UK or a Member State”. It provides that, in relation to such an action
A court does not have jurisdiction to hear and determine an action to which this section applies 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 an action in respect of the statement.
This clause would not impact on claims brought by foreigners against UK publications.
Clause 8 removes the right to jury trial in actions for libel and slander – simply by deleting them from section 69(1) of the Senior Courts Act 1981. Under this provision, libel actions would be tried without a jury unless the court ordered otherwise. Bearing in mind the fact that there has not been a libel jury trial for 20 months, this is unlikely to have a substantial impact. It will, however, permit early judicial determination of meaning – as advocated by the “Early Resolution Procedure Group“.
Clause 9 is the “definition section”. The word “publish” is defined as having the meaning that it has for the purposes of the law of defamation. In other words, the judge made common law concept of “publication” is simply imported into the Bill. “Statement” is defined as meaning
“words, pictures, visual images, gestures or any other method of signifying meaning”.
This is also a repetition of the position at common law.
Other Issues for Consultation
The Consultation Paper identifies areas on which views are sought which are not, presently, included in the draft Bill:
- Responsibility for publication on the internet: Whether the law should be changed to give greater protection to secondary publishers such as internet service providers, discussion forums and (in an offline context) booksellers, or alternatively how the existing law should be updated and clarified.
- A new court procedure to resolve key preliminary issues at as early a stage as possible, so that the length and cost of defamation proceedings can be substantially reduced.
- Whether the summary disposal procedure should be retained, and if so whether improvements can usefully be made to it.
- Whether the power of the court under the summary procedure to order publication of a summary of its judgment should be made more widely available in defamation proceedings
- Whether further action is needed beyond the proposals in the draft Bill and the introduction of a new court procedure 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 whether these restrictions should be extended to other bodies exercising public functions
Comment
The draft Bill is cautious and contains few surprises. It is not radical or wide ranging and does not “rebalance” or “recast” the law of libel. A number of its provisions deal with issues of little practical importance – for example, single publication, “libel tourism” and jury trials.
The draft Bill does not really address the “power imbalances” which bedevil the law of libel – rich media corporations versus individual claimants and rich individuals and corporations against bloggers and NGOs. The Libel Reform Campaign has given the Bill a cautious welcome but wants
• a stronger public interest defence
• an end to the ability of corporations to sue in libel
• more protection for web-hosts and internet service providers from liability for the words of others.
Our initial verdict is “mostly harmless” – although reform of this kind will, inevitably, complicate litigation and thus increase costs in the medium term. The consultation, however, raises wide ranging and important questions which need to be carefully considered by everyone who has an interest in ensuring that the law of libel strikes a proper balance. It closes on 10 June 2011.
“A number of its provisions deal with issues of little practical importance – for example, single publication, “libel tourism” and jury trials.”
What a curious thing to assert…
This was said because there are negligible numbers of “libel tourism” cases, jury trials are vanishingly rare and the “single publication” rule appears to have very little practical impact. Do you have evidence to the contrary? If so, we would be very pleased to publish it.
Presumably you will be responding to the consultation, if so, will you publish your response here?
We will respond and will publish our response.
One glaring omission from the “other issues for consultation” is a failure to even mention the financial and other hurdles facing the ordinary man in the street when contemplating a libel action against a wealthy publisher – who often can also possibly be described as one of the “corporate bullies” referred to by Lord McNally!
I certainly don’t agree with the approach adopted in the bill to deal with the ‘problem’ of libel tourism. Indeed, I’m not even sure that there is a ‘problem’ – however, I think one must be cautious when dismissing the problem solely on the basis of decided cases.
The point we made in the earlier post about the absence of libel tourism is based on a study of the issued claims – not decided cases.
Yes – thanks for pointing that out – although I am still not convinced that it provides a complete picture. As I said earlier, I’m not saying libel tourism IS a problem (even if teh data suggested that a high number of cases were being filed), just that we need more empirical data to inform the debate. I agree, however, that the popular rhetoric surrounding libel tourism in the push for defamation reform is worrying and has thwarted what otherwise could be a rigorous and genuinely productive examination of the operation of the current law.
One other substantive comment on the bill that I think has been overlooked. The consultation paper says that cl 3(3) of the Bill replaces s 5 of the 1996 Act and that it is intended to have the same effect. This post says that cl 3 is largely cosmetic. However, I think it goes further. Section 5 requires that two or more imputations are relied on BY THE CLAIMANT, whereas cl 3(3) does not require this – it appears that the more injurious imputation can be one that is raised by the defendant. This was the intended effect of Australia’s ‘contextual truth’ defence under s 26 of the uniform defamation legislation (although it has recently been confirmed that the provision suffers from unfortunate drafting such that it has been rendered substantially ineffective – see Kermode v Fairfax [2010] NSWSC 852). If I’m correct, this should be seen as very positive and useful reform.
I’ve just had a look at section 5 – and the wording between it and cl 3(2) and (3) does not, after all, appear to be that different – so perhaps it’s not a significant change. But it does seem strange that the words ‘against the plaintiff’ are omitted from the draft bill. Also, I think s 5 is ambiguous. It could be read, as the court did in Polly Peck, as saying that the claimant must rely on the two or more imputations in his or her claim; an alternative interpretation, which I think is just as available, is that it could be an imputation raised by the defendant. Indeed, under s 26 of the Australian legislation, the defence is precluded if the claimant relies on the more injurious ‘contextual imputation’. The draft bill could clarify this.