The draft Defamation Bill has provoked a range of responses, including those of Dominic Crossley and my colleague Alastair Mullis published here on Inforrm.  However, my take on this draft is that it could be characterised as a missed opportunity, being a clarification of the law rather than a serious project to assess the form and purpose of defamation law in the UK (in most cases, England and Wales only).  My suggestions for what could have improved this draft (or could yet improve the process) are about comparative law, media regulation, and the Internet. A draft Bill is an opportunity to break out of the claim and counter-claim that have characterised the libel reform debate to date, but will this Bill really deliver such a reassessment?

1. The consultation paper is extremely focused on English law. For example, despite a new Defamation Act 2009 in Ireland (itself drawing upon Law Reform Commission reports and at least one Working Group) having passed in 2009 and not long in force, can you guess how many times it is referred to? Answer: zero. Similarly, other jurisdictions in which the law of defamation is based on the English common law torts of libel and slander don’t get a look in.

This is such a pity. The Reynolds defence, for example, has been discussed in courts across the Commonwealth, e.g. in Canada (Grant v Torstar [2009] SCC 61). Others have seen statutory changes, like the set of statutes across the Australian jurisdictions in 2005 (such as Queensland) – which gets mentioned in brief without citations or details at one point in the document. The Irish legislation saw a number of common law concepts placed on a statutory footing, with attendant debates on how to encapsulate judicial innovations of recent years and to ‘future-proof’ the legislation. Reading this consultation makes you think that there are no other models in the world (let alone the common law family) worth thinking about – or that statutory drafting should start from scratch. Dr. Eoin O’Dell (Trinity College Dublin) has already taken on the task of comparing the draft Bill with the Irish Act, and it’s a very important post for all interested in this question (now republished on Inforrm)- but this is something that the Ministry of Justice should have done. In particular, given how much credence is given to US developments in the debate, the consideration of how other legal systems subject to the ECHR or using procedural devices derived from English law respond to the particular problems of defamation is long overdue.

2. The focus is also on changes to tort law rather than to media regulation. The role of the Press Complaints Commission isn’t considered, although this has been discussed in recent years by the Media Standards Trust, the House of Commons Culture, Media & Sport Committee, and the PCC itself. Compare this with the proposal of the 2003 review in Ireland for a statutory press council and the eventual adoption of a co-regulatory model whereby the Press Council is industry-driven but the subject of statutory recognition through the Defamation Act and an associated SI. Nor is the fact that broadcasters are subject to the ‘fairness’ provisions of the Ofcom Broadcasting Code (as well as ‘privacy’ but that’s for another day), which would not be changed by defamation reform. Although defamation is of course not just about the the media, a narrow focus on the familiar tort without considering how it relates to the actual set of influences on the press and on broadcasters may lead to inappropriate results. Furthermore, given the bitter tone of much of the libel reform debate, separating significant changes to the liability or responsibility of the media from non-judicial procedures for dealing with complaints and disputes could make it harder to bring different views together.

3. The long-awaited discussion of Internet defamation (except single publication) leaves much to be desired.  The decision in Metropolitan International Schools v Designtechnica & Google [2009] EWHC 1765 (QB), for example, is not discussed – despite it saying some very significant things about both s 1 of the 1996 Act and the E-Commerce Directive 2000/31/EC (such as the role of common law in protecting search engines). (Apparently Godfrey v Demon is the leading case, despite there being other cases, technological development and the Directive all under the bridge since then). The role of the ISP is explained in confusing and contradictory terms (sometimes it seems to mean mere conduit in the sense of article 12 ECD, sometimes wider). An odd category of ‘ blog and discussion board owners’ is created and discussed. ECJ jurisprudence is ignored, e.g. Google v Louis Vuitton C-236/08 which considered the degree of ‘neutrality’ on the part of an intermediary. Notice and takedown is discussed without even naming the Digital Millennium Copyright Act (the most discussed and one of the most elaborate NTD schemes, dealing with IP rights in the United States), let alone its strengths and flaws which have been well debated. The section relies on virtually no sources, and – given that it was not discussed in the MoJ’s earlier Libel Working Group – much more detail is needed than is found here. Notice and takedown has been discussed almost to death in academic literature, and even the specific question of Internet defamation has been the subject of some attention, most notably Collins’ The Law of Defamation and the Internet. Within this process, though, it seems like an afterthought, and doesn’t bring the debate beyond the rather enigmatic clause 9 of Lord Lester’s 2010 Bill (about ‘facilitators’), which is reproduced in this paper.

Dr. Daithí Mac Síthigh is a lecturer and director of the LLM in IT & IP Law at the UEA Law School, University of East Anglia; his blog is at Lex Ferenda