A Joint Committee of the Commons and the Lords has been appointed to conduct pre-legislative scrutiny of the Draft Defamation Bill and to report by Tuesday 19 July 2011.  The Committee has called for evidence. The first evidence on the Draft Bill will be heard on Wednesday 27 April 2011, from Lord Lester of Herne Hill.

The Committee will be chaired by Rt Hon Lord Mawhinney (Con).  Its other members are as follows:  Sir Peter Bottomley MP (Con) Rehman Chishti MP (Con) Stephen Phillips MP (Con) Christopher Evans MP (Lab)/Co-operative Dr Julian Huppert MP (Lib Dem) Rt Hon David Lammy MP (Lab) Lord Bew Crossbench Lord Grade of Yarmouth CBE (Con) Baroness Hayter of Kentish Town (Lab) Lord Marks of Henley-on-Thames QC (Lib Dem) Rt Hon Lord Morris of Aberavon KG QC (Lab)

The Committee has invited written submissions which must be received by Friday 10th June 2011 – although it notes that, due to the short timetable, papers received by the end of May are most likely to influence its work.

The Committee has announced that the areas which it will examine will include:

Clause 1: definition of defamation; a “substantial harm” test


  • Should there be a statutory definition of “defamation”? If so, what should it be?


  • What are your views on the clarity and potential impact of the “substantial harm” test, including its relationship to other elements of the current law such as the presumption of damage in libel claims?


Clause 2: Responsible publication in the public interest


  • Will the responsible publication defence overcome the concerns associated with the existing Reynolds defence? If not, what changes should be made?


  • Should the meaning of “public interest” be defined or clarified in any way, particularly in view of the broader meaning of this term in relation to the existing fair/honest opinion defence?


Clause 3: Truth


  • What are your views on the proposed changes to the defence of justification? In particular, would it be appropriate to reverse the burden of proof in relation to individuals or companies?


Clause 4: Honest opinion


  • What are your views on the proposed changes to the existing defence of honest comment? Should the scope of the defence be broadened? Is its relationship to the responsible publication defence both clear and appropriate?


Clause 5: Privilege


  • Are the proposals to extend the defences of absolute and qualified privilege appropriate and sufficient?
  • Is there a case for reforming the Parliamentary Papers Act 1840 and other aspects of Parliamentary privilege within the draft Bill (in the light of recent coverage of super-injunctions); or should this be addressed by the (forthcoming) draft Parliamentary Privilege Bill?


Clause 6: Single publication rule


  • Do you agree with replacing the multiple publication rule with a single publication rule, including the “materially different” test? Will the proposals adequately protect persons who are (allegedly) defamed by material that remains accessible to the public after the one-year limitation period has expired?


Clause 7: Jurisdiction – “Libel tourism”


  • Is “Libel tourism” a problem that needs to be addressed by the draft Bill? If so, does the draft Bill provide an effective solution? Is there a preferable approach?


Clause 8: Jury trial


  • Do you agree that the existing presumption in favour of trial by jury should be removed? Should there be statutory (or other) factors to determine when a jury trial is appropriate?


Consultation issues:


  • Does the current law provide adequate protection for internet service providers (ISPs), online forums, blogs and other forms of electronic media?


  • What are your views on the proposals that aim to support early-resolution of defamation proceedings? Do you favour any specific types of formal court-based powers, informal resolution procedures or the creation of a libel tribunal?


  • Is there a problem with inequality of arms between particular types of claimant and defendant in defamation proceedings? Should specific restrictions be introduced for corporate libel claimants?


Overarching issues:

  • Do the proposals in the draft Bill and Consultation strike an appropriate balance between the protection of free speech and the protection of reputation? What is the relationship between privacy and reputation?
  • Will the draft Bill and Consultation proposals adequately address the problems that are associated with the current law and practise of defamation? If not, what additional changes should be made

The Committee’s contact details are here.  The Committee also has a page on the UK Parliament website – to which content will be added.

Inforrm encourages readers to make submissions to the Committee and to send copies to us – to be included on a special section of the blog – see the right hand column.