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.