The Report of the Joint Committee on the draft Defamation Bill, published in October 2011, identified a number of areas where it considered greater clarity was required. For the most part, the Government in its Response [pdf], published in February 2012, has accepted the recommendations made.
There remain, however, a number of areas where the effect that the proposed changes of the law will have in practice remains unclear. In several instances, the Government proposes “to consider further” points raised by the Joint Committee. These include matters such as “reportage” (the repetition of allegations made by others), how “peer-reviewed” papers and “public archive” material may be defined so as to be afforded the protection of statutory qualified privilege, the liability of “secondary publishers” such as booksellers, and the thorny topic of “publication on the internet”. As ever, the devil may lie in the detail, for which we shall have to wait.
It is clear from the Joint Committee Report and from the Government’s Response that a great deal more work is required before the Defamation Bill is put back before parliament.
Of many concerns with the Bill in its present form, I highlight two:
Substantial and/or Serious Harm
The draft Defamation Bill at clause 1 proposes that “A statement is not defamatory unless its publication has caused or is likely to cause substantial harm to the reputation of the claimant”. The Joint Committee recommended a stricter test of “serious and substantial” harm.
The Government, taking the view that the use of both terms would cause uncertainty and litigation over what differences may exist between the two, now proposes “serious” harm. But what in practice would be the effect? The intention apparently is to raise the bar; but from where to where? In theory, the test of whether words are defamatory is objective, but in practice opinions may widely differ as to the seriousness of an allegation, not only between the parties but also between members of the judiciary.
Tugendhat J in Thornton v Telegraph Media Group  EWHC (QB) 1414 concluded that there was already a “threshold of seriousness” recognised under common law and he favoured a definition that a statement was defamatory if it
“…substantially affects in an adverse manner the attitude of other people towards [the claimant] or has a tendency so to do.”
Whether a statement would have a tendency to cause harm (serious, substantial or otherwise) can be assessed simply by examining the statement itself. Whether a statement has caused or would be likely to cause harm may require detailed examination of the surrounding evidence; this might include the claimant’s existing reputation, any previous misconduct on the part of the claimant, the extent to which the same, similar or perhaps even different allegations have previously been published elsewhere.
Whichever term is introduced, “serious”, “substantial” or both, it is foreseeable that the way the clause is presently worded will result in frequent and expensively contested hearings.
In response to widely publicised concerns about “foreign” claimants bringing libel cases in England against “foreign” defendants, the draft Defamation Bill at clause 7 proposes that where the defendant is not “domiciled” in either the UK, another EU member state or in a state party to the Lugano Convention, the court would not have jurisdiction to hear the case unless 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 action”.
The Joint Committee, while stating that it believed that “the extent of libel tourism has been exaggerated in some quarters”, supported the thrust of this proposal, but sensibly recommended that the Bill should “make clear that residents in England and Wales may sue in this jurisdiction in respect of publication abroad provided there has been serious and substantial harm suffered by them.”
Why should an English resident or domiciled claimant be denied the right to sue in England if the publisher happens to be domiciled outside Europe and a defamatory allegation has been published not only inEngland but also in one or more other countries?
The Government in its Response does not propose any change to the Bill but states that
“legal advice suggests that amending the clause to exclude claimants domiciled in this jurisdiction could raise difficulties in relation to anti-discrimination principles in European law, as this would be giving more favourable treatment to claimants domiciled in England and Wales than claimants from elsewhere in the European Union” and “… could operate as a disincentive to the latter in exercising their freedom of movement…”
Instead it proposes to clarify in its explanatory notes and during the passage of the Bill that it would “normally expect claimants domiciled in England and Wales to satisfy the requirements of the clause”.
European law already recognises that action for defamation may be brought either in the jurisdiction where the defendant is domiciled (where the claimant may sue in respect of the whole publication in whatever jurisdictions it has taken place) or in the jurisdiction where the harm is suffered (where the claim is limited to publication within that particular jurisdiction). In practice, the Government may be right that the English courts will more readily accept jurisdiction where the Claimant is domiciled in England and Wales, but the current wording of the Defamation Bill leaves scope for new argument and more expense in contested hearings.