Opinion: “Draft Defamation Bill – Proposals, Problems and Practicalities”, Part 2 – Antony White QC and Eddie Craven

5 04 2011

This is the second part of a four part post dealing with the Draft Defamation Bill and Consultation Paper published by the Government on 15 March 2011.  It deals with truth, honest opinion and privilege.  Part 1 of this post was published on 3 April 2011.

Clause 3 – New statutory defence of truth

Clause 3 of the Bill proposes the establishment of a new statutory defence of truth in the following terms:

(1) It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.”

At the same time the clause would also abolish the existing common law defence of justification:

(4) The common law defence of justification is abolished and, accordingly, section 5 of the Defamation Act 1952 (justification) is repealed.”

The Consultation Paper explains that where a defendant wishes to rely on the new statutory defence the court would be required to apply the words used in the statute and not the current case law. However it goes on to say that “in cases where uncertainty arises the case law would constitute a helpful but not binding guide to interpreting how the new statutory defence should be applied”. It is not clear exactly how this is intended to operate in practice. It is apparent from the Consultation Paper that the substance of the defence is intended to remain the same and that the old case law is intended to illuminate the new statutory meaning. This proposed approach has attracted criticism from some commentators (for example, Alastair Mullis’ post here), who have cited Lord Hoffmann’s comments during the second reading of the Lester Bill:

I am always nervous, speaking as a former judge, about legislative attempts to restate rules of common law. They lead to expensive litigation over whether or not Parliament intended to change things.”

Under clause 3 the defendant will have a defence if it can show that the imputation conveyed by the statement is substantially true. This reflects the current law as stated in Chase v News Group Newspapers ([2002] EWCA Civ 1772). Accordingly litigants will continue to argue about, and the courts will continue to apply, the so-called Chase Level meanings: actual guilt (Chase Level 1); existence of reasonable grounds to suspect guilt (Chase Level 2); existence of grounds to investigate (Chase Level 3).

The new defence retains the so-called “repetition rule”, which provides that it is no defence to an action for defamation for the defendant to prove that he was merely repeating what someone else had said. For example if D writes that “X told me that C is a thief”, D cannot escape liability by arguing that his statement was nothing more than a truthful description of what X had said to him about C. Clause 3(1) of the Draft Bill maintains the repetition rule by focusing on the “imputation” conveyed by the statement. In the present example the imputation of D’s statement is that C is a thief. Thus in order to invoke the defence of truth, D would need to prove that C actually is a thief.

The Bill would also repeal but substantially reproduce the defence of partial justification under s. 5 of the Defamation Act 1952. Clause 3(2) and (3) provide that where a statement contains two or more distinct imputations, the new defence of truth would not fail if, having regard to the imputations which are shown to be substantially true, the allegations which are not shown to be substantially true do not “materially injure” the Claimant’s reputation. Thus the subsections provide as follows:

(2)     Subsection (3) applies in an action for defamation in relation to a statement which conveys two or more distinct imputations.

(3)     If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not materially injure the claimant’s reputation.

The Consultation Paper also addresses one particular issue that has arisen from time to time, namely whether the partial justification defence should be extended to cover situations where there is a single defamatory imputation which may have several different shades of meaning. Parties frequently disagree on the exact meaning that certain words bear. A claimant may argue that a particular statement means that he has knowingly lied, whereas the defendant may contend that the words merely mean that he has behaved recklessly. If the court agrees with the claimant’s meaning (i.e. if the court rules that the words meant that he had knowingly lied) should it be a defence if the defendant can prove that the claimant was reckless, even though he cannot prove the more serious allegation that the claimant knowingly lied?

At present this situation falls outside of the scope of s. 5 of the Defamation Act 1952. However it has been suggested that the defence of truth should be available where there is a single imputation and, having regard to what can be proved by the defendant, there is no material injury to the claimant’s reputation. A clause was included in Lord Lester’s Bill to this effect (clause 5(3). The Consultation Paper therefore invites views on whether the law should be amended in this way.

 

Clause 4 – Statutory defence of honest opinion

Clause 4 would repeal the existing common law defence of fair/honest comment and replace it with a new statutory defence of “honest opinion”. Whilst much of the substance of the new defence matches the common law defence, there are also some important differences concerning the factors that the defendant must establish in order to invoke the defence.

The existing honest comment defence has spawned some notoriously complex case law. It was recently considered by the Supreme Court in Spiller v Joseph ([2010] 3 WLR 1791), where Lord Phillips summarised the constituent elements of the defence as follows:

(a)   The comment must be on a matter of public interest.

(b)   The statement must be recognisable as one of comment and not an imputation of fact (but an inference of fact from other facts referred to may amount to comment)

(c)    The comment must be based on facts which are true or by a statement of fact protected by privilege.

(d)  The comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based.

(e)   The comment must be one that an honest person could have made on the proved facts (however prejudiced he might be and however exaggerated or obstinate his views).

The Consultation Paper highlights concerns about the complexity and uncertainty of the current defence. Particular concerns have arisen in the context of several recent cases involving comment on issues of scientific and academic debate (for instance the high profile case of Singh v British Chiropractors Association [2010] EWCA Civ 350). English PEN and Index on Censorship complain that “defendants have to jump through too many hoops for their publication to qualify as ‘comment’, while judges tend to be overly analytical in their approach”. The Culture, Media and Sport Select Committee also singled out “the issue of fair comment in academic peer-reviewed publications” as requiring specific consideration.

Clause 4 of the Draft Bill provides:

4    Honest Opinion

(1)     It is a defence to an action for defamation for the defendant to show that Conditions 1, 2 and 3 are met.

(2)     Condition 1 is that the statement complained of is a statement of opinion.

(3)     Condition 2 is that the opinion is on a matter of public interest.

(4)     Condition 3 is that an honest person could have held the opinion on the basis of –

(a)     a fact which existed at the time the statement complained of was published;

(b)     a privileged statement which was published before the statement complained of.

(5)     The defence is defeated if the claimant shows that the defendant did not hold the opinion.

(6)     Subsection (5) does not apply in a case where the statement complained of was published by the defendant but made by another person (“the author”); and in such a case the defence is defeated if the claimant shows that the defendant knew or ought to have known that the author did not hold the opinion.

(7)     The common law defence of fair comment is abolished and, accordingly, section 6 of the Defamation Act 1952 (fair comment) is repealed.

The Draft Bill proposes that three conditions would need to be satisfied in order to establish the new defence. First, the statement complained of must be an expression of opinion and not an assertion of fact. Secondly, the opinion must be on a matter of public interest. Thirdly, the opinion must be one that an honest person could have held on the basis of a fact which existed at the time the statement was published or on the basis of a privileged statement that was published before the statement complained of.

Conditions one and two reflect the current law. In Spiller it had been suggested that the public interest requirement might be dropped from the defence at some point in future (see Spiller [113]). However the Bill deliberately opts to retain the public interest requirement as part of the new defence. Whilst the arguments are “finely balanced”, the Consultation Paper concludes that removing the public interest requirement would extend protection to expressions of opinion on private matters, the airing of which may raise issues under Article 8 and which could not be justified as being in the public interest.

The third condition also sets out largely to maintain the current law. However it abandons the requirement that a comment must indicate expressly or impliedly the facts on which the opinion is based. This condition was the subject of detailed consideration in Spiller. The rationale for the requirement was explained by Fletcher Moulton LJ in Hunt v The Star Newspaper: the injustice that an unjustified defamatory comment can cause to the claimant’s reputation may be mitigated if the reader can see the basis of the comment and can thus be in a position to appreciate that it is not justified (Hunt v The Star Newspaper [1908] 2 KB 309). Clause 4 of the Draft Bill “avoids the complexities which have arisen in case law” by jettisoning this requirement.

Under condition 3, the statement must be based on a fact that existed at the time or upon a statement protected by privilege. In Galloway v Telegraph Group Limited ([2004] EWHC 2786 (QB) at [176]) Eady J appeared to suggest that a defence of honest comment could be based on a statement protected by Reynolds privilege. However unlike Lord Lester’s bill (clause 3(4)(b)), the draft Bill does not expressly include statements protected by Reynolds privilege within the ambit of the third condition. The Consultation Paper explains that: “it is not intended that statements to which the public interest defence in clause 2 of the Bill applies will be covered by this subsection”.  Accordingly the question whether a statement protected by Reynolds privilege (or the proposed statutory equivalent) can form the basis of a defence of honest comment under clause 4 remains uncertain.

The Draft Bill also maintains the current position by requiring the opinion to be one that an honest person could have held. In Spiller Lord Phillips had suggested that this requirement might be replaced by a test of whether the defendant subjectively believed that his or her opinion was justified by the facts on which he or she based it (at [112]). The Consultation Paper rejects this approach on the basis that a subjective test could add to the complexity of the defence and would give rise to “difficult evidential requirements”. It therefore adopts an objective test.

There is however an important difference between the new defence and the existing honest comment defence. Under the proposed honest opinion defence the defendant need only establish that an honest person would have been justified in holding the opinion based on one or more facts or privileged statements. However the defendant does not need to establish that he or she was actually aware of the fact(s)/privileged statement(s) at the time of publication of the words complained of. This stands in contrast to the current law. In Lowe v Associated Newspapers Ltd ([2007] QB 580) Eady J held that in order to rely on the honest comment defence the defendant must have actually known of the facts in question (although he added that “it is not necessary that they should all have been in the forefront of the commentators mind” and said that a commentator could rely on a fact even if he has forgotten it, since “it may have contributed to the formation of his opinion”).  Although in Spiller Lord Phillips cast doubt on some aspects of Eady J’s reasoning, it is clear that under the present law a defendant must establish some prior personal knowledge of the facts on which he is basing his defence. The defence proposed by the Draft Bill would appear to abandon this requirement, meaning that it will be easier for defendants to avoid liability for defamatory statements of opinion.

Subsection (5) maintains the current law in relation to malice. Thus the defence of honest opinion would only fail if the claimant could prove that the defendant did not hold the view expressed. For these purposes the fact that the defendant was motivated by spite or ill-will is irrelevant provided that he genuinely did hold the opinion expressed (See Lord Nicholls in Tse Wai Chun Paul v Cheng [2001] EMLR 777 at [41] and Lord Phillips in Spiller v Joseph at [108]).

 

Clause 5 – Absolute privilege

 

Clause 5(1) would extend the scope of absolute privilege. Under the present law s. 14 of the Defamation Act 1996 provides that fair, accurate and contemporaneously published reports of proceedings before all UK courts, the European Court of Human Rights, the Court of Justice of the European Union and any international criminal court established by the UN Security Council are protected by absolute privilege. In view of the responses to Lord Lester’s Bill, the Government’s Draft Bill proposes that s. 14 of the Defamation Act 1996 should be amended so that it covers:

(a)      any court in the United Kingdom;

(b)      any court established under the law of a country or territory outside the United Kingdom;

(c)       any international court or tribunal established by the UN Security Council or by an international agreement.

The Consultation Paper invites views on whether a statutory clarification of the term “contemporaneous” is desirable. It also asks whether the distinction between absolute and qualified privilege in relation to contemporaneous and non-contemporaneous reports should be removed.

Clause 5 – Qualified privilege

Clause 5 of the draft Bill also proposes amending Schedule 1 of the Defamation Act 1996 in order to extend the scope of qualified privilege in the following ways:

(a)        In addition to protecting copies and extracts of the materials listed in Part 2 of Schedule 1 to the Defamation Act 1996, clause 5(3) of the draft Bill would extend qualified privilege to a fair and accurate “summary” of that material. This mirrors an identical amendment proposed by the Lester Bill.

(b)       Clause 5(7) of the draft Bill would introduce a specific provision into Part 2 of Schedule 1 giving protection of qualified privilege to fair and accurate reports (and summaries) of proceedings at “academic and scientific conferences”. However the Bill provides no definition of the phrase “academic and scientific conferences”. On this point the Consultation Paper explains that “a clear and comprehensive definition would be very difficult to achieve” and that it may therefore be preferable for the courts to consider in a flexible way whether the defence should be available in particular circumstances.

(c)        At present Part 2 confers qualified privilege upon certain publications arising in the UK and EU Member States. Clause 5 extends the scope of this protection to publications arising anywhere in the world. Thus clause 5(4) extends protection for reports of public meetings and clause 5(6) extends protection for reports of findings or decisions of certain kinds of association.

(d)       At present Part 2 confers qualified privilege upon fair and accurate reports of proceedings at general meetings and documents circulated by UK public companies. Clause 5(5) of the draft Bill proposes extending this protection to cover public companies anywhere in the world.

The Consultation Paper explains that the Government decided not to extend qualified privilege to cover fair and accurate copies and extracts from material in an archive where the limitation period for an action against the original publisher has expired. The Paper explains that there is “no generally agreed definition of what constitutes an archive” and says that it is “difficult to see a clear rationale for extending qualified privilege to archives generally”.

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


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7 04 2011

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