Opinion: “Draft Defamation Bill – Proposals, Problems and Practicalities”, Part 1 – Antony White QC and Eddie Craven

“Nearly 30 years have elapsed since the last Government Committee on defamation, so that a review of the law is seasonable.” These were the words of one commentator writing in the 1976 Modern Law Review about the recent report of the Faulks Committee on Defamation. The author went on to observe that, “although succeeding in its aim of simplifying the law, the Committee has not taken the opportunity for any radical reform”.

Thirty-five years later, on 15 March 2011 the Coalition Government published its much trailed Draft Defamation Bill and Consultation Paper. Despite the hyperbole surrounding its announcement, in its present form the Bill proposes relatively few substantial changes and would mainly codify the existing common law. Plus ca change? Not quite – the Bill does contain some important proposals that are likely to have real consequences if they become law. Moreover, the very act of placing the main defences on a statutory footing would in itself represent a significant alteration to the defamation landscape. Practitioners will therefore wish to be familiar with the new provisions and the reasoning underlying their introduction.

This post aims to outline the proposed changes and to provide an overview of some of the most important features of the draft legislation. It also considers the further issues raised by the Consultation Paper, some of which also touch upon points of real practical importance.

Background to the Draft Defamation Bill

The Draft Bill aims to fulfil the Coalition Agreement’s promise of a “review of libel laws to protect freedom of speech”. This follows on from the Report of the Ministry of Justice’s Libel Working Group published in March 2010, which examined the issues of so-called “libel tourism”, the possibility of reforming the multiple publication rule and of introducing a statutory public interest defence and explored various procedural points. Several of these issues were also tackled by the February 2010 Report of the Culture, Media and Sport Select Committee, Press Standards, Privacy and Libel (Second Report of Session 2009-10 HC 362-1).

The Bill also comes against the backdrop of growing popular clamour for libel reform. English PEN and Index on Censorship recently published a joint report entitled Free Speech is Not for Sale, which calls for bold changes to English defamation law. The reform campaign has also been vociferously supported by newspapers, bloggers and the wider media.

In May 2010 Lord Lester of Herne Hill introduced a Private Member’s Bill on the subject of defamation reform. This Bill received a Second Reading on 9 July 2010; however it was subsequently shelved after the Government announced its own plans to introduce legislation after a period of consultation. However many of Lord Lester’s proposals now find reflection in the Government’s draft Bill, which has drawn heavily from some parts of the earlier Bill.

The Draft Defamation Bill

According to the Deputy Prime Minister the Draft Bill is intended to “end the libel farce” and “will let the press be free”. However examination of the content of the proposed legislation reveals few radical changes to the status quo. Instead, much of the Bill focuses on replacing existing common law defences with new statutory defences covering very similar ground. The most significant changes involve the introduction of a substantial harm threshold for bringing defamation actions, the partial abrogation of the multiple publication rule and the removal of the presumption in favour of jury trial.

In overview the Draft Bill makes the following proposals:

a.      Substantial harm – Under clause 1 a statement would not be defamatory unless its publication has caused or is likely to cause substantial harm to the claimant’s reputation.

b.      Responsible publication on matter of public interest – Clause 2 would create a new statutory defence of responsible publication on a matter of public interest.

c.       Truth – Clause 3 would create a new statutory defence of truth and would repeal the existing common law defence of justification.

d.     Honest opinion – Clause 4 would create a new statutory defence of honest opinion and would repeal the existing common law defence of fair/honest comment.

e.      Privilege – Clause 5 would extend the range of situations that are protected by absolute or qualified privilege under the Defamation Act 1996.

f.        Single publication rule – Clause 6 would replace the common law’s “multiple publication rule” with a new “single publication rule” in certain circumstances.

g.      Jurisdiction – Clause 7 would create a new jurisdictional rule that would apply whenever a defamation claim is brought before the English courts against a defendant who is not domiciled in the UK, the European Union or a Lugano Convention state.

h.      Jury trial – Clause 8 would remove the presumption in favour of jury trial in all defamation cases and would replace it with a general discretion to order trial before a jury where the court considers it to be in the interests of justice to do so.

i.        Meaning of “publish” and “statement” – Clause 9 proposes to import the existing common law definitions of “publish”, publication” and “statement” for the purposes of the Bill.

Clause 1 – Requirement to show substantial harm

Clause 1 of the Draft Bill proposes an exclusionary definition of “defamatory” in order to incorporate a “substantial harm” threshold. Clause 1 states:

“A statement is not defamatory unless its publication has caused or is likely to cause substantial harm to the reputation of the claimant.”

The effect of this clause is that a statement will not be held to be defamatory unless it has caused or is likely to cause substantial harm to the claimant’s reputation. A similar provision had been included in Lord Lester’s Bill. The Consultation Paper endorses that approach and argues that clause 1 of the Draft Bill would provide extra certainty and would help to discourage trivial claims. It acknowledges that there is a risk that this might lead to “some frontloading of costs” but believes that this is a price worth paying to ensure that such issues are resolved at an early stage in proceedings.

In practice however the new provision is unlikely to take things much further than the existing common law position. In Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB) Tugendhat J referred to the judgment of the House of Lords in Sim v Stretch ([1936] 2 All ER 1237) and to the judgment of Sharp J in Ecclestone v Telegraph Media Group Ltd ([2009] EWHC 2779 (QB)) and held that, “whatever definition of ‘defamatory’ is adopted, it must include a qualification or threshold of seriousness, so as to exclude trivial claims” [89]. It seems unlikely that a requirement that the claimant must establish “substantial harm” will be applied very differently to a requirement that the statement must pass a “threshold of seriousness”. A statement that does not cause substantial harm is unlikely to pass a threshold of seriousness, and vice versa.

Moreover, under the doctrine established in Jameel v Dow Jones ([2005] QB 946) a claimant may apply to have a claim struck out as an abuse of process on the basis that it does not involve the commission of a “real and substantial tort”. In deciding whether to strike out, the court must ask whether “the game is worth the candle”. As Lord Phillips MR explained in Jameel:

“Keeping a proper balance between the article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant’s reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged.” [55]

In other words, “the Claimant must be pursuing the legitimate purpose of protecting its reputation. If it is not doing that, or if the means by which it is doing it are disproportionate, the court may have regard to the principle of freedom of expression in deciding whether or not the claim should be allowed to go forward at all.” (Hays Plc v Hartley [2010] EWHC 1068 (QB) at [62]). The key issue is whether the cost of bringing a claim is disproportionate to “the true value of the vindication available to a claimant” (Cristiano Ronaldo v Telegraph Media Group Limited [2010] EWHC 2710 (QB) at [61]). In cases where a claimant has suffered no substantial harm to her reputation and is unlikely to suffer such harm in future, it will usually be disproportionate to continue with the claim.

The Bill does not specifically address the mechanics for striking out claims that fail to satisfy the substantial harm threshold. The Consultation Paper proposes that, “this would best be achieved by enabling the court to exercise its existing discretion to strike out or give a summary judgment, rather than by imposing a mandatory requirement for the court to strike out in these circumstances”. This implies that the courts would retain a discretion not to strike out claims that are incapable of passing the substantial harm test even though the effect of clause 1 is that those claim would be bound to fail at trial. The Consultation Paper indicates that the matter will be raised with the Civil Procedure Rule Committee in due course.

Clause 2 – Statutory defence for responsible publication on a matter of public interest

Clause 2(1) of the Bill would establish a new statutory defence of responsible publication on a matter of public interest:

“Responsible publication on matter of public interest

(1)     It is a defence to an action for defamation for the defendant to show that –

(a)     the statement complained of is, or forms part of, a statement on a matter of public interest; and

(b)     the defendant acted responsibly in publishing the statement complained of.”

Clause 2 has been heralded as a powerful new defence of responsible public interest publication. There have been widespread calls for the introduction of a statutory public interest defence. English PEN and Index on Censorship recently complained that the existing Reynolds defence “has not been applied widely enough beyond investigative reporting”. They call for the introduction of “a stronger public interest defence that also extends to journalists and writers who may not appear to be obvious candidates for a Reynolds defence”. The Culture, Media and Sport Select Committee also considered there to be “potential for a statutory responsible journalism defence to protect serious, investigative journalism and the important work undertaken by NGOs”.

1.However despite being acclaimed as a powerful rebalancing in favour of defendants, in essence clause 2 is little more than a statutory reformulation of the existing common law defence of Reynolds privilege. Reynolds privilege provides a defence whenever a statement has been published on a matter of public interest and the publisher has acted responsibly in all the circumstances (Reynolds v Times Newspapers Ltd [2001] 2 AC 127). Despite the way that the defence is sometimes portrayed, it is now clear that it applies to all forms of public speech and is not limited to publications by conventional media organisations (Seaga v Harper [2009] AC 1 at [11]). Whilst there remains an academic debate about whether Reynolds belongs to a different jurisprudential category to conventional qualified privilege, the existence, scope and conditions of the defence are now well established.

According to the Consultation Paper, clause 2 of the Draft Bill is designed to provide a statutory defence that is “clearer and more readily applicable outside of the context of mainstream journalism” than Reynolds privilege. The Paper describes the concerns expressed by NGOs, the scientific community and others that Reynolds is “difficult to rely on” and that as a result legal advice on running the defence is often “extremely cautious and discouraging”. In addition, the media have expressed concerns about the way that Reynolds operates in practice, citing the complexity and costs incurred in running the defence. In a similar vein, the Libel Working Group described how “the uncertainty experienced by organisations in this area is a major factor in creating a chilling effect on freedom of expression and investigative reporting” (Report of the Libel Working Group at [62]).

Despite these concerns, the structure of the proposed statutory defence is substantially the same as the existing common law defence. The leading authority on the application of Reynolds privilege is Jameel v Wall Street Journal Europe Sprl ([2007] 1 AC 359). In that case Lord Hoffmann explained that it was necessary to follow a two-stage test when applying Reynolds. At stage one the court must consider two questions: First, did the article concern a matter of public interest? This must be decided by reference to the article as a whole and not by looking at the defamatory statement in isolation. Secondly, was the inclusion of the defamatory statement within the article was itself justifiable? This latter question “is often a matter of how the story should have been presented” and therefore “allowance must be made for editorial judgment”.

At the second stage the court must then go on to consider whether the steps taken by the defendant to gather and publish the information were responsible and fair. In Reynolds Lord Nicholls laid down a non-exhaustive list of ten matters that the courts should take into account when considering this issue. In Jameel Lord Hoffmann approved Lord Nicholls’ approach and emphasised that the standard of conduct required of the publisher must be applied in a “practical and flexible manner” and “must have regard to practical realities” ([56]).

The public interest defence contained in the Draft Bill adopts a similar two-stage approach. At the first stage, the court must ask whether the statement complained of is or forms part of a statement on a matter of public interest. If the answer to the first question is affirmative, the court must then go on to consider whether the defendant acted responsibly in publishing the statement. Unlike the approach articulated by Lord Hoffmann in Jameel, this formulation does not expressly direct the court to ask whether the inclusion of the defamatory statement in the article was justified. However in practice it seems unlikely that this will make any practical difference to the outcome of any case. The question of whether inclusion of the defamatory statement was justified will presumably be subsumed within the broader question of whether the defendant acted responsibly.

The Bill omits any definition of “public interest”. This omission is deliberate – the Consultation Paper says that the meaning of public interest “is well-established in the English common law” and that attempting to define the term in statute would be “fraught with problems”. By way of example, the Paper cites the risk of inadvertently missing matters that are of public interest from any statutory definition and the risk of encouraging satellite litigation that could lead to increased costs. However this omission is likely to disappoint members of the Libel Working Group, who argued that English law needs “a better definition of a public interest defence” (Report of the Libel Working Group at [69])

On the question of what constitutes responsible behaviour, the Draft Bill proposes that the courts should consider a non-exhaustive list of factors similar to the list laid down by Lord Nicholls in Reynolds.

In Reynolds Lord Nicholls stated that the courts should consider the following:

(a)     The seriousness of the allegation;

(b)    The nature of the information and the extent to which the subject matter was a matter of public concern;

(c)     The source of the information;

(d)    The steps taken to verify the information;

(e)     The status of the information;

(f)      The urgency of the matter;

(g)    Whether comment was sought from the claimant;

(h)    Whether the article contained the gist of the claimant’s side of the story;

(i)      The tone of the article; and

(j)       The circumstances of the publication, including the timing.

Subsection (2) of clause 2 of the Draft Bill largely covers the same ground:

(1)     In determining whether a defendant acted responsibly in publishing a statement, the matters to which the court may have regard include (amongst other matters) –

(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 claimant’s 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).

Perhaps the only significant difference from Reynolds privilege is the fact that the draft Bill is expressly intended to cover statements of opinion as well as statements of fact. The Consultation Paper explains that the new public interest defence will be available “regardless of whether the statement complained of is a statement of fact, an inference or an opinion”. It is not considered necessary to include a specific provision to this effect within the clause because the language of the clause does not limit the scope of protection to factual statements (indeed sub-paragraph (h) refers to “suspicions” and “opinions”, thereby highlighting the breadth of the new defence).

The Consultation Paper acknowledges that extending the public interest defence to cover statements of opinion means that “there will be a degree of overlap between this defence and the new honest opinion defence”. It is therefore possible that both defences would potentially be available in some circumstances. However the precise relationship between the two remains to be seen.

According to the Consultation Paper, it had been suggested that the list of factors in subsection (2) should include a reference to the extent to which the defendant has complied with any relevant code of conduct or guidelines. A provision to this effect was included in Lord Lester’s Bill; however the Government’s Bill decided against including such a provision, citing the risk of satellite litigation over the meaning of the codes and the extent to which they had been complied with.

In response, it could be pointed out that s. 32(3) of the Data Protection Act 1998 allows the court to have regard to a data controller’s compliance with relevant codes of practice when deciding whether or not the controller had a reasonable belief that publication of certain data would be in the public interest. There is no evidence that this provision has generated any satellite litigation in the data protection field, although it was significant in the Naomi Campbell case. Similarly s. 12(4)(b) of the Human Rights Act 1998 requires the court to have particular regard to “any relevant privacy code” whenever it is considering granting any relief which may affect the right to free expression in a case involving journalistic, literary or artistic material. Again, there is no sign of significant litigation on this point.

Furthermore, in Jameel Lord Hoffmann said that “the standard of responsible journalism is made more specific by the Code of Practice which has been adopted by the newspapers and ratified by the Press Complaints Commission. This too, while not binding upon the courts, can provide valuable guidance.” There is therefore clear authority that codes of conduct are relevant to the assessment of whether a defendant has acted responsibly in publishing certain material.

The Bill also seeks to clarify the reportage doctrine. Under the existing regime the common law defence of reportage applies where “judging from the thrust of the report as a whole, the effect of the report is not to adopt the truth of what is being said, but to record the fact that the statements which were defamatory were made” (Charman v Orion Group Publishing [2007] EWCA Civ 972, [2008] 1 All ER 750 at [48]). In other words a defendant may have a defence where it has reported defamatory allegations made by a third party about the claimant. The reportage defence is thus a modification of the repetition rule made in the interests of Reynolds privilege (Roberts v Gable [2008] QB 502).

Clause 2(3) would elevate reportage onto a statutory footing. It provides that:

“A defendant is to be treated as having acted responsibly in publishing a statement if the statement was published as part of an accurate and impartial account of a dispute between the claimant and another person.”

In summary, apart from the fact that clause 2 extends protection to statements of opinion the Bill does little more than codify Reynolds privilege. This may be thought surprising, since the Libel Working Group had previously concluded that “pure codification of Reynolds would not be of value”. The Consultation Paper itself concedes that “there are clearly limits on the extent to which any statutory provisions could provide clarity and certainty in what is a complex area of the law” and it acknowledges that any statutory provisions will inevitably be subject to interpretation and development by the courts. This echoes the earlier conclusion of the Libel Working Group that “there will always have to be a degree of flexibility inherent in any test – and therefore uncertainty in terms of its application in any particular situation.” (Report of the Libel Working Group at p. 33).  It also reflects Lord Hope’s observation in Jameel that: “Any test which seeks to set a general standard which must be achieved by all journalists is bound to involve a degree of uncertainty”.

Placing the defence on a statutory footing will not necessarily make it significantly easier to predict whether the defence is likely to succeed in a particular case. In addition, some would argue that the concerns expressed about the vagueness of Reynolds are overblown and that Lord Hope’s words in Jameel are apposite: “‘Responsible journalism’ is a standard which everyone in the media and elsewhere can recognise.” (Jameel at [107]).

Finally, it is worth noting that it is unclear what will be the fate of the existing common law Reynolds defence if clause 2 becomes law. The Draft Bill expressly repeals the common law defences of justification and honest comment and replaces them with new statutory defences; however in establishing a new public interest defence the Bill makes no reference to the future status of common law Reynolds privilege. This would suggest that the Bill envisages the common law defence remaining in existence alongside the new statutory defence. However it is not clear how this would work in practice or whether this co-existence might make the law more rather than less complicated. Whilst there seems to be little daylight between the two defences, the possibility of parallel regimes does little to achieve the clarity and simplicity that the draft Bill aspires to achieve.

Antony White QC is a barrister and Edward Craven a trainee barrister at Matrix Chambers.  This is the first part of a talk given at the LexisNexis conference on Privacy, Defamation and Media on 31 March 2011