The Joint Committee on the Draft Defamation Bill has issued its Report on the Bill.   The Committee, chaired by Lord Mawhinney (pictured) welcomes most of the reforms contained in the draft Bill, but recommends a number of changes to the draft: a test of “serious and substantial harm” in clause 1 and some amendments to clause 2 (responsible publication) and to other clauses.  It also recommends that qualified privileges should be extended to fair and accurate reports of academic and scientific conferences and peer reviewed articles.On the “Consultation Issues” the Committee proposes a new notice and take-down procedure for online defamation and, in relation to companies, that they should have to obtain the permission of the courts to issue proceedings by demonstrating an arguable case that “substantial financial harm” was suffered.

The Committee’s recommendations are said to be based on “four core principles”:

Freedom of expression/protection of reputation: some aspects of current law and procedure should provide greater protection to freedom of expression. This is a key foundation of any free society. Reputation is established over years and the law needs to provide due protection against unwarranted serious damage;

Reducing costs: the reduction in the extremely high costs of defamation proceedings is essential to limiting the chilling effect and making access to legal redress a possibility for the ordinary citizen. Early resolution of disputes is not only key to achieving this, but is desirable in its own right—in ensuring that unlawful injury to reputation is remedied as soon as possible and that claims do not succeed or fail merely on account of the prohibitive cost of legal action. Courts should be the last rather than the first resort;

Accessibility: defamation law must be made easier for the ordinary citizen to understand and afford, whether they are defending their reputation or their right to free speech; and

Cultural change: defamation law must adapt to modern communication culture, which can be instant, global, anonymous, very damaging and potentially outside the reach of the courts”

The reports recommendations are said to be designed to strike a fairer balance between the protection of reputation and freedom of speech. The report argues that the Government’s proposals do not do enough to address the key problems in defamation law – the “unacceptably” high costs which make access to justice difficult for many. The Committee proposes a series of reforms aimed at ensuring that disputes are generally resolved rapidly by mediation or arbitration, rather than via the courts. As well as making recommendations for legislative change, the Committee seeks far stronger and more urgent action by judges to manage cases efficiently.

The Committee argues that the law has not kept pace with the development of modern communication culture. It outlines a new notice and take-down procedure for the internet, designed to provide a quick and easy remedy for those defamed online and better protection to online publishers. Internet hosts gain the protection of the law provided they act responsibly by following the new procedure. Any anonymous postings must be taken down upon complaint, unless authors are prepared to identify themselves or there is an overriding public interest in publication. The Committee recommends changing the law to promote cultural change so that, over time, the credibility of anonymous postings – and the damage that they can cause – is limited.

The Committee was not attracted to the proposal that the courts should have power to issue “declarations of falsity” but does suggest that judges should have power to order the publication of a summary of his or her judgment.  For example, under clause 2 (responsible journalism) it suggests that

The judge who upholds a public interest defence should make it clear when the truth of the allegation is not also proven. It may be appropriate, depending on the facts of the case, for the judge to order a summary of his or her judgment to be published, to make this clear. This would help to protect the reputation of the claimant, but without the practical and legal complications associated with declarations of falsity. [36]

In a Press Release Lord Mawhinney is quoted as saying

“Defamation proceedings are far too expensive, which is a barrier to all but the richest. Our recommendations should help minimise the reliance on expensive lawyers and the courts, bringing defamation action into the reach of ordinary people who find themselves needing to protect their reputation or defend their right to freedom of speech. They are based upon firm principles, which I am sure the Government will support.”

The Report goes further than the Draft Bill towards the “Libel Reform” agenda and is likely to be welcomed by reform campaigners.   It will be interesting to see how many of its proposals are incorporated into the final version of the Bill by the Government.