In last week’s Queen’s Speech the Government announced the long awaited Defamation Bill for the next session of Parliament. This bill had its formal first reading on 10 May 2012. Regular readers of this blog will recall the long history of this proposal. The bill has its origins in a private members’ bill introduced by Liberal Democrat peer Lord Lester which received its Second Reading on 9 July 2010. In March 2011 the Government issued a Consultation Paper on a draft Bill.
In April 2011 a Joint Committee of the Lords and Commons was set up to consider the bill. This reported on 12 October 2011. The Government responded to the report on 29 February 2012. The new bill closely follows the views set out in the Government response.
The provisions of the bill can be summarised as follows:
Clause 1 of the bill introduces a requirement that a statement will be considered defamatory only if it has caused or is likely to cause “serious harm” to a claimant’s reputation. This contrasts with the “substantial harm” test in clause 1 of the draft bill. It is wholly unclear whether this clause is intended to change the position at common law as set out in the case of Thornton v Telegraph Media Group ([2010] EWHC 1414 (QB)). This case is referred to in the Explanatory Notes which then, mysteriously, goes on to say that the clause “raises the bar for bringing a claim“. The intention is wholly unclear and it seems likely that the clause will be interpreted as not changing the common law.
Clause 2 replaces the common law defence of justification with a new statutory defence of truth. The clause is intended broadly to reflect the current law while simplifying and clarifying certain elements (see Explanatory Notes). It appears to make no change of substance to the current law.
Clause 3 introduces the statutory defence of honest opinion. It replaces the common law defence of fair comment. Once again, the clause appear broadly to reflect the current law while simplifying and clarifying certain elements (see Explanatory Notes). It does, however, remove the current requirement for the opinion to be on a matter of public interest (for a comment on this see the recent Inforrm post by Gavin Phillipson).
Clause 4 introduces the defence of “responsible publication on matter of public interest”. It is based on the existing common law defence established in Reynolds v Times Newspapers and is intended to reflect the principles established in that case and in subsequent case law A defendant has to be able to show that the statement complained of was, or formed part of, a statement on a matter of public interest; and that he or she acted responsibly in publishing it. The clause lists nine factors – but allows that there may be more – to which a court may have regard when considering responsible publication. Clauses 4(3) and (4) also introduces a statutory version of the “reportage” variant of Reynolds, providing that if the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed when considering whether the defendant acted responsibly.
Clause 5 introduces new protection for website operators – an operator sued over a statement posted on the website has a defence if it can show that they did not post the material. But the defence fails if a claimant shows that he or she cannot identify the person who posted the material, has given the operator a notice of complaint about it, and that the operator has failed to respond to the notice of complaint. Clause 5(4) sets out certain specific information which must be included in a notice of complaint: the complainant’s name, the statement concerned, where on the website the statement was posted and explain why it is defamatory of the complainant. Regulations may specify what other information would need to be included in a notice of complaint. A detailed critique of this provision can be found on the “Cyberleagle” blog.
Clause 6 creates a new defence of qualified privilege relating to peer-reviewed material in scientific or academic journals. The defence applies as long as the statement relates to a scientific or academic matter, and that it as subject to a pre-publication independent review of its scientific or academic merit by the journal’s editor and one or more people with expertise in the relevant field. This was a recommendation of the Joint Committee and has been accepted by the Government. It probably only reflects the position as it would have been found to exist at common law (see Vassiliev v Frank Cass & Co Ltd [2003] EWHC 1428 (QB) – in which qualified privilege was found partly on the basis of the journal having an “exclusive readership”). The practical impact of this provision seems likely to be very limited as libel actions based on publications in peer reviewed journals are extremely rare.
Clause 7 extends the range of court reports covered by absolute privilege, makes other amendments to the Defamation Act 1996, and extends qualified privilege to fair and accurate reports of a press conference held anywhere in the world on a matter of public interest, and to fair and accurate reports of scientific or academic conferences held anywhere in the world.
Clause 8 introduces a single publication rule to prevent an action being brought in relation to publication of the same material by the same publisher after a one year limitation period from the date of the first publication of that material to the public or a section of the public. This does not apply to a subsequent publication if the manner of that publication is materially different from the manner of the first publication – a court considering this issue may have regard to issues including the level of prominence a statement is given and the extent of the subsequent publication. There remains a discretionary power to disapply the limitation period (see clause 8(6)).
Clause 9 is aimed at so-called libel tourism – a phenomenon which, as contributors to this blog have pointed out on many previous occasions, it is of little or no practical significance. The clause provides that the court should not deal with defamation actions brought against people who do not live in the UK or a European Union state unless it 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 the action.
Clause 10 introduces a new defence for secondary publishers, providing that a court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless it is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher.
Clause 11 removes the presumption that defamation cases will be tried by jury by removing “libel and slander” from the list of cases where there is a statutory presumption in favour of jury trial. Bearing in mind the fact that the last libel jury trial was in July 2009 this provision is also unlikely to be of great practical importance.
Clause 12 gives the court a new power to order a losing defendant in a defamation case to publish a summary of its judgment, the wording of which should be agreed between the parties, failing which it will be settled by the court. This provision is new and is to be welcomed
Clause 13 repeals the Slander of Women Act, which states that there is no requirement for a claimant to prove special damage if suing for slander over “words spoken and published which impute unchastity or adultery to any woman or girl”. It is difficult to see the practical relevance of this provision – cases under the Act are most unusual, the last example in the law reports seems to be Russo v Cole ([1965] 3 All ER 822).
Overall, as with the original Bill, our verdict on this version remains “mostly harmless”. The substantive changes which are made to the law – for example, clauses 8, 9 and 10 – are unlikely to have much practical impact on libel litigation. The Bill will, in the short term, introduce uncertainty and increase litigation. It seems likely that, in the medium term, it will not, of itself, change the cost, volume or nature of libel litigation.
“Clause 6 creates a new defence of qualified privilege relating to peer-reviewed material in scientific or academic journals.”
and
“It probably only declares the position at common law (see Vassiliev v Frank Cass & Co Ltd [2003] EWHC 1428 (QB)).”
I suggest that this is not the case. Vassiliev was a case of good old-fashioned common interest qualified privilege (along with “reply to attack” privilege) based on the limited circulation of a specialised academic journal. It was nothing to do with peer review. That term appears only once in the judgment, in passing, in describing the journal.
The myth that the decision in Vassiliev turned on peer review was also asserted in oral evidence to the Joint Select Committee on the Draft Bill. I challenged that assertion with the witness at the time. I am not certain whether the author of this post is he same person, but if I am right, it is unfortunate if this incorrect assertion is being propagated repeatedly.
The post goes on to say “Its practical impact seems likely to be very limited indeed as libel actions based on publications in peer reviewed journals are extremely rare.”
While this is true in terms of actions launched, the experience of editors and publishers is that their work is subject to a degree of threat and “chill” as a result of the lack of privilege for peer reviewed work (and an unwillingness to rely on Reynolds Privilege only). Furthermore, would not an honest comment based on peer reviewed publication – something we want to encourage surely – itself fall work more easily within the scope of the Honest Opinion defence because the comment was based on a privileged matter (true or not)? A number of cases of litigation in the world of science and academia could be considered to be about honest comment on the peer-reviewed evidence-base.
None of this detracts from the main conclusion of the post that the bill does not, internet aside, in its current form represent a major reform and that the absence of a new and effective public interested defence is most disappointing.
Thank you for this. Your point on Vassiliev v Frank Cass is well made and the post has been amended to reflect it. The case did not, of course, turn on “peer review” although we suspect that a similar reasoning process would have been applied if privilege and “peer reviewed” journals had been in issue. In this brief post we have not explored the interesting concept of “academic journal” and “peer review”. Their application to say, journals produced by evangelical colleges, reviewed by other “evangelical peers” might generate some difficult issues.
Thank you for response.
I am not sure that your correction [It probably only reflects the position as it would have been found to exist at common law (see Vassiliev v Frank Cass & Co Ltd [2003] EWHC 1428 (QB) – in which qualified privilege was found partly on the basis of the journal having an “exclusive readership”).] goes far enough.
The finding of an “exclusive readership” in Vassiliev vs Frank Cass was not directly related to Peer Review and only weakly indirectly because although peer review does increase the cost of a publication (thus impacting on circulation), there are many peer reviewed publications with large circulations (and even larger readerships), such as Nature, Science, Cell. NEJM, the Lancet and the BMJ. these are often re-reported by the general media to the world at large. These publications are by no stretch immune to libel actions or libel threats – as we know from the case law (Nature, BMJ, Lancet), though how much relates to peer reviewed work within them is moot.
On the point about the definition of peer review, it is an interesting point. To mitigate against this the proposed clause refers to peer-reviewed publications in scientific journals so it would not be possible to construct an evangelical peer review on a single article – you’d have to create a whole evangelically peer reviewed journal. Also of course the construction of less than honest peer review would go to malice and add great risk to the defence. Unlike much malice, the degree to which this was not an honest peer review could be explored in factual terms rather than inferring motives which is the usual hurdle when malice is considered without a smoking gun.
My view is that a new effective Public Interest defence is needed anyway, so I do not place great store on the peer review privilege as a way of defending public interest publications in general.
PS I should disclose an interest as the person who suggested this new defence when I was an MP, though i had envisaged using statutory QP by adding peer review to Part 2 of Schedule 1 of the Act and thus making the defence subject to correction and clarification. In contrast the current version has the benefit of applying to relevant (peer reviewed) academic books or books of conference proceedings which are not amenable – as journals are – to correction/clarification.
Evan Harris’s point about the new peer review provision going further than the existing common law is well made and I should admit to being a person who has suggested on the basis of the Vasiliev case that a peer reviewed journal article may be protected by qualified privilege. Though that was not the basis for the Vasiliev decision it is certainly the case that many peer reviewed journals articles will be protected by traditional qualified privilege though I concede that there may be a problem of applying privilege to journals such as Nature which have very wide circulations.
That said, I do not see any justification for providing a special privilege for peer reviewed academic or scientific journals. I concede that scientific and academic speech are important but then so is political speech and speech about other matters of public interest. The underlying justifications for protecting academic and scientific speech are no different from those protecting political speech (and indeed may not be as strong) and yet the Bill provides academic speech with stronger protection. The publication of political and other public interest speech, if untrue, is only protected where the defendant can show that she has acted responsibly. Yet untrue academic or scientific speech is to be protected unless the claimant can show that it was made maliciously. Those who sponsor the Bill have never explained (and I do not expect they will) why scientific and academic speech deserves greater protection than other types of public interest speech. For me, this is yet another aspect of the Bill that demonstrates how unprincipled and partial this whole ‘reform’ process has been.
Of course, there are those (and I think that Evan Harris is such a person) who believe that all untrue speech about matters of public interest should be protected unless it is shown to have been made maliciously. They, in other words, would have English law go further in protecting free speech than does American law. Such a position, while in my view wrong in failing to give sufficient weight to the article 8 right to reputation, is at least more principled than the approach taken by the Bill.
Dealing first with Alastair’s second point – that
” there are those (and I think that Evan Harris is such a person) who believe that all untrue speech about matters of public interest should be protected unless it is shown to have been made maliciously.”
Our actual position is as follows
1) that – absent malice, untrue publication about matters of public interest which is subject to adequately prompt and prominent correction or clarification – should all be protected rather than just an irrationally selected subsection of it as currently.
2) Statutory qualified privilege in section 15 of the Defamation Act 1996, as listed in Part II of Schedule 1 to the Act has been found (by the House of Lords in Mccartan Turkington Breen) to cover – subject to publication in a suitable manner a reasonable letter or statement by way of explanation or contradiction – non-malicious publication on matters of public interest including reports of proceedings of press conferences even if not open to the public and even where the press release is not read out but, say, placed on chairs or a table.
3) The basis for that judgment is that the press is the modern day equivalent of the public meeting as am means of disseminating matter of public interest tot he public.
4) It seems perverse that the non-malicious publication of a matter of public interest is protected subject to correction or contradiction when the publisher picks up a press release from a chair in a press conference but not from her fax machine, or from the printer connected to her emails.
5) The remedy for defamation on a matter of public interest is suitable rapid and suitable prominent correction or clarification of the factual error, since there is no public interest in false assertions being propagated.
6) Such an extension of the defence available under statutory QP in section 15 of the 1996 Act, would lead to more corrections, fewer expensive legal actions and a culture of correction and clarification rather than one intimidation by the richer party on the likely cost vs likely success of a drawn out justification or Reynolds privilege defence.
Dealing now with Alastair’s first complaint that – under the bill – “Those who sponsor the Bill have never explained (and I do not expect they will) why scientific and academic speech deserves greater protection than other types of public interest speech.”
The actual position is that libel reformers like me would be happiest with the section 15 QP defence set out in my comment above as this would cover peer-reviewed academic and scientific publications (except books where the prompt correction or clarification is hard to achieve). In the absence of such a section 15 QP defence, or to cover peer reviewed books, the proposed defence is a welcome addition.
The flaw in Alistair’s argument is that it is not as he seems to claim in his complaint that “scientific and academic speech” which deserves greater protection than “political speech and speech about other matters of public interest.”
Rather it is *peer-reviewed* scientific and academic speech which deserves that greater protection, not just on the basis of its subject matter but on the basis that – unlike political speech – it has gone through an expensive and “responsible” process of peer review. In other words it is deserving of an “automatic” Reynolds privilege. The fact that the Government have recognised that extra proaction is needed for peer reviewed academic and scientific publication is a recognition that a the Reynolds defence (whether statutory or common law) is not due to its complexity and unpredictability accessible to hard-pressed learned journals who are already paying for an expensive peer review process and should not be expected to defend their publication via a ruinously expensive Reynolds defence.
Evan’s helpful clarification of the reasons for according protection for scientific and academic speech make for interesting reading. As I understand him, the points he is making are the following:
1. The fact that speech is about matters of scientific or academic interest is a reason but not the only / most important reason for according it different treatment from speech on other matters of public interest.
2. What justifies treating some forms of academic and / or scientific speech differently from other types of speech is that is has been through a peer review process.
3. The fact that an article / book has been through peer review ought to mean that it is automatically entitled to Reynolds protection.
4. On the basis of the above, the Government is right to accord privilege (which will only be lost on proof of malice) to peer reviewed scientific and or academic speech which can only be defeated by proof of malice.
If I have understood him correctly (and I am perfectly willing to concede that I may not have) then I have a number of concerns. However one justifies it, the result of Clause 6 of the Government Bill is that peer reviewed academic or scientific speech is treated differently from other speech on matters of public interest. From a theoretical perspective this is troubling and raises the question why it should be so treated. I would concede that the work of scientists and academics generally has had a huge impact on the development of society. I am not however persuaded that this in itself justifies treating their speech, even if peer reviewed, as being more worthy of protection than other forms of speech on matters of public interest. It cannot make any difference from a theoretical perspective that the work is peer-reviewed. We don’t protect untrue speech (and it is only in respect of untrue speech that recourse is needed to clause 6) because in advance it was thought likely to be true (ie it went through a peer review process designed, at least in part, to ensure its accuracy). We protect speech because of the contribution it makes to truth, democratic self-governance and self-expression.
I do not think however that Evan is seeking to justify the different treatment of peer reviewed scientific speech on theoretical grounds but believe that he is essentially making a pragmatic argument for different treatment. A paper that has gone through a thorough peer review process is presumably more likely to be accurate and, in all likelihood, will have been rigorously researched and written in a responsible and generally balanced way. It should as a result benefit from a presumption that it satisfies the Reynolds test. While I have some sympathy for this argument I have two comments to make. First, he places a great deal of weight on the peer review process. As anyone who has published in academic journals will tell you, there is ‘peer review’ and ‘peer review’. Not all journals are the same quality and peer reviewers are not equally knowledgeable. Most critically, peer review is a not a reading for libel.
Secondly, even if one concedes that a peer reviewed journal article should be presumed to be responsibly published, does this justify according it the privilege granted in clause 6, that is to say that the article is privileged unless shown to have been made maliciously? For me, this is a step too far. I can see an argument for a rebuttable presumption to the effect that an article that has gone through peer review is responsibly published. Shift the burden to the claimant to prove that the article was not responsibly published by all means. What however justifies requiring the claimant to prove malice? Such a requirement, in my view, does not represent an appropriate balance between article 8 and article 10.
Finally, lest it be forgotten, scientific and academic speech is already well protected as a reading of Bowker and Singh should indicate. Evan thinks, and here I agree, that the process of resolving libel disputes is bust and needs mending. Taking peer reviewed papers out of the system will not however help the system. More radical reform to the law and substance is needed. The Bill certainly does not do that.