Opinion: “Draft Defamation Bill – Proposals, Problems and Practicalities”, Part 3 – Antony White QC and Eddie Craven

7 04 2011

This is the third 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 the single publication rule, jurisdiction and jury trial.  Part 1 of this post was published on 3 April 2011 and Part 2 was published on 5 April 2011.

Clause 6 – Single publication rule

Under the current law, each publication of defamatory material gives rise to a separate cause of action subject to its own limitation period. This principle is known as the “multiple publication rule”. However the advent of the internet age and the development of online archives have placed considerable strain upon this rule. Under the multiple publication rule every “hit” on a web page constitutes a fresh publication which potentially gives rise to a fresh cause of action in defamation. This means that publishers are potentially liable for any defamatory material accessible on an online archive regardless of how much time has passed since the initial publication and regardless of whether proceedings have already been brought in relation to the initial publication. Although the European Court of Human Rights has held that the rule does not in itself violate Article 10 (Times Newspapers Ltd (Nos 1 and 2) v United Kingdom (Apps Nos 3002/03 and 23676/03) [2009] EMLR 254), it is clear that it can have an onerous impact upon newspapers and other online publishers.

Support for reform of the multiple publication rule has come from a number of quarters. Free Speech is Not For Sale argues that “the definition of ‘publication’ in libel is no longer fit for the internet age”. The Report of the Libel Working Group identified a range of possible alternatives:

a.      Introduce a single publication rule with a one-year limitation period coupled with a discretion to the court to extend the limitation period where appropriate.

b.      Introduce a single publication rule with a one-year limitation period. After expiry of the limitation period a claimant would be barred from recovering any further damages; however it would still be entitled to apply to the court for an order requiring the defendant to correct a defamatory statement.

c.       Adopt the approach taken in s. 11 of the Irish Defamation Act 2009, which provides that only one cause of action exists in relation to a multiple publication. However the court possesses a discretion to grant leave for a further action to be brought where this is required by the interests of justice.

d.     Retain the multiple publication rule but introduce a defence that protects a publisher from legal action outside of the one-year limitation period provided that the publisher attaches a notice to the online archive indicating that the accuracy of the material is disputed by the claimant.

Clause 6 of the Draft Bill would adopt the first of these options. Under clause 6 a claimant would be prevented from bringing an action in relation to a subsequent publication of the same material by the same publisher where more than a year has passed since the date when that material was first published to the public or a section of the public. Thus clause 6(1) provides:

“(1) This section applies if a person –

(a)      publishes a statement to the public (‘the first publication’), and

(b)      subsequently publishes (whether or not to the public) that statement or a statement which is substantially the same”

Subsection (2) explains that “publication to the public” includes “publication to a section of the public”. The Consultation Paper explains that this is intended to ensure that the provision catches publications to a limited number of people (e.g. a blog with a small number of subscribers).

Subsection (3) then provides that for the purposes of s. 4A of the Defamation Act 1980 (which lays down the one-year limitation period in defamation actions) any cause of action against the publisher in relation to the subsequent publication is treated having accrued on the date of the first publication.

However under subsection (4) the new single publication rule will not apply to the subsequent publication “if the manner of that publication is materially different from the manner of the first publication”. Exactly how this subsection applies to particular cases may well be a matter of dispute. Subsection (5) therefore attempts to provide some certainty by laying down the following guidance:

“(5) In determining whether the manner of a subsequent publication is materially different from the manner of the first publication, the matters to which the court may have regard include (amongst other matters) –

(a) the level of prominence that a statement is given;

(b) the extent of the subsequent publication.

The effect of the Draft Bill is that a claimant could still bring a new claim in respect of a later statement if:

a.      the later statement is published less than a year after the original statement was published;

b.      the later statement is not “substantially the same” as the original statement;

c.       the manner of publication of the later statement is materially different from the original publication; or

d.     the original material is republished by a new publisher;

The court would also retain discretion under s. 32A of the Limitation Act 1980 to allow the claimant to bring an action outside of the one-year limitation period where it is equitable to do so.

Clause 6 will be of particular interest to newspapers and other publishers who maintain online archives of earlier publications. Typically the articles stored in those archives will be in substantially the same form as the article originally published to the public. Therefore the Bill would offer substantial protection against the risk of claims based on dormant defamatory material that is resurrected years after it was initially published.

Clause 7 – Jurisdiction

Clause 7 contains proposals that are aimed at tackling “the widespread perception that the English courts have become the forum of choice for those who wish to sue for libel” and the “chilling effect” that this is supposedly having on freedom of expression “throughout the world”.

The rules regarding jurisdiction in defamation proceedings are already subject to international legislation. Under the Brussels I Regulation jurisdiction must be exercised by the Member State where the defendant is domiciled (Art. 2). However under Art. 5(3) a person domiciled in a Member State can also be sued in tort in the courts of the Member State where the harmful event occurred. In Shevill v Presse Alliance ([1996] AC 959 and [1995] ECR I-415) it was held that publication of defamatory material in this jurisdiction is a “harmful event” for the purposes of Art. 5(3).

In cases where the defendant is not domiciled in a Member State the English courts have a discretion to decline jurisdiction if not satisfied that there was a real and substantial tort committed within the jurisdiction (Jameel at [70]; CPR 6.37 and Practice Direction 6B para 3.1(9)), or if the Claimant cannot establish that England and Wales is the proper place in which to bring the claim (CPR 6.37(3)). These provisions are already available to the court to prevent “libel tourism” in an appropriate case – see for example the recent decision in Firtash v Public Media & Ors, 24/2/11.

Clause 7 would apply to actions in defamation against a person who is not domiciled in the UK, another Member State or a State that is a party to the Lugano Convention. In those cases, a claimant would only be permitted to bring a claim in the English courts if this is “clearly the most appropriate place” in which to bring such a claim. Clause 7(2) accordingly provides that:

“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.

The Consultation Paper explains that the “new” approach is intended to ensure that in cases where a statement has been published in this jurisdiction and abroad, “the court is required to consider the overall picture to consider where it would be most appropriate for the claim to be heard”. In terms of procedure, it is intended that the new rule would be applied within the existing procedural framework for defamation claims. Thus, if a person applied for permission to serve a claim form outside of the jurisdiction under CPR rule 6.36, the court would refuse to exercise its discretion to grant permission if it was of the view that it would not have jurisdiction to hear the claim as a result of clause 7. If permission was granted under CPR rule 6.36, the defendant would be able to make an application under CPR rule 11(1)(a) challenging the court’s jurisdiction and asking the court to set aside the claim form and service of it. It might be thought that this does little more than re-emphasise what is already apparent from the existing rules relating to jurisdiction.

Clause 8 – Jury trial

Under the current law there is a right to trial by jury in defamation proceedings on the application of any party “unless the court considers that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury” (s. 69 of the Senior Courts Act 1981 and s. 66 of the County Courts Act 1966).

In cases involving a jury, the following issues are left to the jury:

i.      The meaning that the words complained of bear and whether that meaning is defamatory.

ii.      In cases where a defendant pleads a defence of justification, whether the defendant has shown that the words were substantially true.

iii.      In cases of honest comment, all issues of fact are for the jury. The only exception is that it is for the judge to decide whether the subject matter is a matter of public interest (this is treated as a question of law). The same is true in relation to the defence of Reynolds privilege.

iv.      Whilst the judge decides whether a publication attracts qualified or absolute privilege, all disputed facts relevant to the existence of privilege are determined by a jury (e.g. whether a report is fair and accurate).

v.      The question whether a publication was malicious is for the jury.

vi.      The assessment of damages.

In practice however few defamation cases ever actually end up before a jury. In 2010, for example, there were no defamation jury trials. Yet there is still widespread support for reform of the rules relating the right to trial before a jury. Much of this support derives from a belief that the right to jury trial encourages the parties to engage in protracted interlocutory disputes. This view was expressed by Lord Phillips in Spiller v Joseph:

“Finally, and fundamentally, has not the time come to recognise that defamation is no longer a field in which trial by jury is desirable? The issues are often complex and jury trial simply invites expensive interlocutory battles…which attempt to pre-empt issues from going before the jury.” [116]

Clause 8 of the draft Bill therefore proposes that the presumption in favour of jury trial should be substituted for a discretion to order jury trial where it is in the interests of justice. The Bill does not contain any guidelines to assist the court in exercising this discretion, but the Consultation Paper indicates that it would be desirable to do so and invites submissions on what criteria would be appropriate.

Antony White QC is a barrister and Edward Craven a trainee barrister at Matrix Chambers.  This is the third 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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