This is the final 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 other issues raised by the Government’s Consultation. Part 1 of this post was published on 3 April 2011, Part 2 was published on 5 April 2011 and Part 3 was published on 7 April 2011.
Other issues for consultation
In addition, the Bill also raises several other issues where reform has been suggested. It invites comments on these points and indicates that further provisions may be included in the Draft Bill in the light of this consultation exercise.
A. Responsibility for publication on the internet
This is a key issue that has attracted much attention in the debate over libel reform. In practice many types of information society service provider (eg search engines) are not regarded as publishers at common law – see Metropolitan International Schools v Google Inc  EMLR 27. Further, section 1 of the Defamation Act 1996 provides a defence of innocent dissemination to people who are not the author, editor or commercial publisher of a defamatory statement. Secondary publishers are protected from liability if they can show that they took reasonable care in relation to the publication and did not know or have reason to believe that what they had done had contributed to the publication of a defamatory statement. However the Consultation Paper notes that “the growth of the internet and the increase in the use of user generated content has raised concerns that the section 1 provisions may be unclear and may not sufficiently protect secondary publishers engaging in multimedia communications”.
Similarly the Electronic Commerce (EC Directive) Regulations 2002, which implement in domestic law the E-Commerce Directive, provide protection along broadly similar lines to certain online intermediary services. However the scope of protection offered by these Regulations is not always clear, and the extent to which they correctly transpose the Directive is controversial and the subject of litigation.
The Consultation Paper invites views on the following issues:
a. Whether the law should be changed to protect Internet Service Providers (ISPs) and other secondary publishers against liability for defamatory material posted online. Possible options include:
i. Removing liability altogether.
ii. Introducing a system akin to that which currently applied in relation to copyright disputes in the US. Under this system the ISP or discussion board would act as a liaison point between the complainant and the poster of the defamatory material. If the issue is not resolved this way, the complainant would have to take legal action against the individual poster and would be barred from bringing a claim against the ISP.
iii. Requiring the claimant to obtain a court order for the removal of defamatory material before the ISP or website host is under any obligation to remove it.
iv. Developing separate frameworks for dealing with small scale forums and blogs, on the one hand, and larger corporate ISPs on the other.
(b) Whether section 1 of the Defamation Act 1996 should be updated and clarified. Clause 9 of Lord Lester’s Bill proposed a new overarching framework and terminology to govern the circumstances in which different types of online and offline publishers would be liable. The Consultation Paper invites submissions on the desirability of this approach.
(c) Whether there should be a new statutory procedure for notice and take down of defamatory material. Again, clause 9 of Lord Lester’s Bill included a provision to this effect and consultees are invited to comment on this.
B. A new procedure for defamation cases
The Consultation Paper outlines proposals for introducing a new preliminary rulings procedure whereby rulings would be given on certain key issues at an early stage in proceedings. This proposal echoes the recent suggestion of Sir Charles Gray and Alastair Brett that a voluntary scheme could be established to determine preliminary issues in disputes involving the media.
The main issues identified by the Consultation Paper as being suitable for preliminary determination are:
a. Whether the claim satisfies the new substantial harm test.
b. What the actual meaning of the words complained of is and whether that meaning is defamatory.
c. Whether the words complained of are a statement of fact or an opinion.
Other issues that could possibly be dealt with under a preliminary hearing system include:
a. Whether the publication is on a matter of public interest.
b. Whether the publication falls within the categories of publication to which qualified privilege is available under Schedule 1 to the Defamation Act 1996.
c. Consideration of costs budgeting. (Note, the Defamation Proceedings Costs Management Scheme is currently being piloted at the Royal Courts of Justice and an extension to this pilot programme has recently been approved.)
C. The summary disposal procedure
Under the present law ss. 8 and 9 of the Defamation Act 1996 establish a summary disposal procedure for claims where the court is satisfied that either the claimant’s case or the defendant’s defence has no realistic prospect of success and there is no other reason why the claim should be tried. The court is empowered to make a declaration that the statement complained of was false and defamatory, to order the defendant to publish a suitable correction or apology, to prohibit the defendant from republishing the defamatory statement, and can award up to £10,000 in damages to the claimant.
The Consultation Paper notes that the summary disposal procedure is rarely used in practice. It therefore asks whether the regime should be retained. If the procedure is retained, the Consultation Paper asks whether the court should be given the power to order a losing defendant to publish the full judgment of the court.
D. The ability of corporations to sue in defamation
This is another particularly contentious issue. At present a trading corporation can sue for defamatory statements that harm its trading or business reputation (however it cannot sue for injury to feelings). The Culture, Media and Sport Select Committee referred to a “mismatch in resources between wealthy corporations and impecunious defendants”. It raised the possibility of introducing a new tort of “corporate defamation” which would require a corporation to prove actual damage to its business before it could claim in defamation. Alternatively, the Report suggested that corporations could be forced to rely on the existing tort of malicious falsehood (with its more onerous requirements of establishing actual damage and malice or recklessness). The Report also suggested reversing the burden of proof in cases where the claimant is a corporation. In a similar vein English PEN and Index on Censorship recommend that large and medium sized corporations should be unable to bring claims for libel and should instead be confined to bringing claims in malicious falsehood.
The Consultation Paper appears to take a slightly cool approach to proposals to limit the ability of corporations to sue in defamation. The Paper states that, “it should be recognised that corporations do have reputations which deserve protection against defamatory allegations” and notes that “the damage caused by such allegations can have wide-ranging effects on the employees and shareholders of the company, and on wider society”. It also says that reversing the burden of proof in claims brought by medium and large corporations would not be viable. The Paper adds that the introduction of a new preliminary hearing procedure and the other provisions in the Draft Bill, together with the broader proposals on civil costs outlined in Lord Justice Jackson’s report should mean that defamation proceedings are “far less susceptible to manipulation by those with greater resources, whether they are companies or individuals”. However the Paper does not rule out the possibility of reform and invites views on whether any further provisions should be enacted to address the problems that may arise when large corporations bring claims in libel.
E. The ability of public bodies to bring claims in defamation
In Derbyshire County Council v Times Newspapers Ltd the House of Lords held that a local authority could not bring a claim in libel in respect of its governmental and administrative functions ( AC 534) Subsequent case law suggests that the ambit of the doctrine is broader and applies to agencies and companies that exercise some form of governmental function. The Consultation Paper invites views on whether the Derbyshire principle should be placed on a statutory footing and extended to cover all public authorities within the meaning of s. 6 of the Human Rights Act 1998. The Paper notes that the definition of “public authority” under s. 6 has generated much case law. It therefore suggests as an alternative possibility the creation of a statutory list of public authorities similar to that contained in Schedule 1 to the Freedom of Information Act 2000.
In Slim v Daily Telegraph Ltd Lord Diplock referred to “the artificial and archaic character of the tort of libel” ( 2 QB 157, 171). Many would argue that this description rings even more true today than it did four decades ago. The Draft Defamation Bill represents an important attempt to tidy up defamation law and to look afresh at some of the issues that have generated such complicated and unwieldy case law. Whilst overall the Bill is more evolutionary than revolutionary, the changes that it proposes are certainly not just cosmetic. In particular, the revamped honest opinion defence, the partial abrogation of the multiple publication rule and the removal of the presumption in favour of jury trial would each involve important changes to the existing law. At the same time Consultation Paper raises crucial questions about the procedure for trying defamation claims and the application of the law of libel to internet publications.
In conclusion, whilst the Draft Bill and Consultation Paper are unlikely to satisfy the most ardent advocates of defamation reform, some of the proposals contained in those documents have the potential to effect a significant change to the shape and substance of English defamation law.
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