We are two academic lawyers who specialise in the area of libel and media law more broadly. We have been much engaged in the policy debate on libel reform, and have been critical of the approach reflected in the Defamation Bill and its earlier iterations. Our appreciation of the problems in this area chimes very much more strongly with the general theme surrounding costs, procedure and access to justice for both defendants and claimants that emerged strongly during the Second Reading debate.

Nevertheless, we feel that if the Government is to pursue its current legislative plan through Parliament, then there are a number of specific amendments to the Bill in its current form that should be contemplated seriously. These recommendations are set out in the brief note that follows. We also recommend one additional change to the substantive law: the jettisoning of the ‘single meaning rule’. We consider that this, perhaps counter-intuitively, would very significantly reduce the complexity of the law and practice of the libel regime.

Clause 1: Serious Harm

Clause 1 provides that a statement is not defamatory unless its publication ‘has caused or is likely to cause serious harm to the reputation of the claimant’. It is stated in the Explanatory Notes that the clause is intended to ‘raise the bar for bringing a claim so that only cases involving serious harm to the claimant’s reputation can be brought’.

Under the existing law, ‘trivial’ claims may fail either because the claimant does not establish that the imputation is defamatory, or because no ‘real and substantial’ tort has occurred (the so-called Jameel v Dow Jones [2005] EWCA Civ 75 abuse jurisdiction). So far as the first of these is concerned, it is unlikely that clause 1 will have the effect of raising the bar. In Thornton v Telegraph Media Group Ltd [2010] EWHC 1414, Tugendhat J stated that whatever definition of ‘defamatory’ is adopted, ‘it must include a qualification or threshold of seriousness, so as to exclude trivial claims’ (at [90]). The test in clause 1 appears to be identical to this.

The intention behind clause 1 appears to be that it should apply not just to the question of whether the statement was defamatory, but also to other elements of the claim such as publication and reference to the claimant. In other words, it is intended to ‘codify’ the Jameel abuse jurisdiction albeit with a higher threshold than the existing law. The language of the clause could however be interpreted as referring only to the question whether the statement was defamatory. For the avoidance of doubt, it would be better if the first five words of the clause were replaced with the following: ‘No claim may be brought in libel or slander in respect of any statement…’.

Under the existing law, the question whether a statement is, or is capable of being defamatory, is answered by asking whether 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 serious harm can be assessed simply by examining the statement itself. In contrast, whether a statement has caused or is 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’. This will inevitably increase costs for no obvious gain. The better approach would therefore be for the clause to read as follows:

‘No claim may be brought in libel or slander in respect of any statement unless its publication has caused or is likely to cause serious harm to the reputation of the claimant or has the tendency to do so.’

The Intermingling of Honest Opinion and Responsible Publication

There is a serious error in the Bill of conflation of the clause 3 and clause 4 defences. This manifests in both clauses, and will create an interpretative quagmire when the courts come to apply either clause in given circumstances.  Clause 3(4)(b) provides that as well as relying on true underpinning facts, an opinion will be defensible when it is based upon ‘anything asserted to be a fact in a privileged statement published before the statement complained of’. This includes statements in respect of which the person who had made the original publication might rely on the responsible publication defence if an action were brought in respect of it.

The aim would appear to be to extend the availability of the clause 3 defence to circumstances where the publisher relies on facts regarding some matter of public interest published elsewhere that are false or not provably true. Clause 4(5) provides that the responsible publication defence will apply to both statements of fact and opinions. The Explanatory Notes do not explain why this has been done, but from earlier iterations it may be supposed that this is to avoid the purported difficulty of distinguishing between fact and opinion in publications that include both.

The problem in Clause 3 will arise when a defendant publisher seeks to rely on clause 3(4)(b). To do so, he or she will have to demonstrate that the original publisher would have had a clause 4 defence. This will be virtually impossible to achieve. As is well-known, the extant Reynolds defence is time-consuming and expensive and places a large burden on the publisher-defendant. Clause 3 will result in a form of ‘Reynolds by proxy’ in which the defendant is asked to demonstrate how someone else was responsible when publishing something other than the publication complained of in the instant proceedings. This cannot be sensible.

We would recommend (a) the excision of reference to the clause 4 defence in clause 3(7)(a), and (b) the introduction of a new clause 3(4)(c) to read:

‘any fact concerning a matter of public interest that he reasonably believed to be true at the time the statement complained of was published’.

This would absolve, for example, the garret-room blogger who comments on the basis of some facts published, erroneously as it turns out, in The Times.

The problem with including opinion in clause 4 is both conceptual and practical. In the former respect, it raises basic questions concerning the respective purposes of the defences. It risks eliding the distinction between statements of fact and comments.  A division between fact and comment makes sense because where a defamatory opinion is published, reasonable readers will recognise it as such and either agree, discount it, or reach their own different opinion. The basis on which exemption from liability for defamatory opinion is given should be different from liability for defamatory fact. The capacity of defamatory opinion to mislead is different from that of an inaccurate fact. Where false facts are concerned, readers are unlikely to have any means of determining their truth or otherwise. Thus in respect of false statements of fact, protection should only be afforded to the defendant if, for reasons of public policy, the occasion or nature of the publication demands it. Where defamatory opinion is concerned, provided the facts on which the opinion is based are true, the possibility of reasonable readers being misled by the publication does not arise. The reason for sanctioning publication of a defamatory opinion must therefore be different. Under English law the publication of defamatory opinion is only actionable if it could not be held by an honest minded person or was not in fact held by the defendant.

On the practical level, it is not at all clear how one would demonstrate the ‘responsibility’ of an opinion. It would likely require the importation of the tests from clause 3 into the application of clause 4, but even this would not make sense. The amendment to clause 3 suggested above would be a better means of attaining the desired end. If a single publication included a mixture of fact and opinion, then the revised clause 3 defence would be available to the publisher where he or she had acted responsibly when erring on the facts. The benefit of clause 4 would cover statements of fact, and would extend into the other defence without the need for conceptual blurring. It follows therefore that in our view Clause 4(5) should be omitted and it should be made clear that the defence applies only to statements of fact.

Clause 3: Honest Opinion

The new statutory defence maintains the broad structure of the existing law, but converts what has always been a defence with both subjective and objective elements into a wholly objective one (save for the clause 3(5) malice issue). Currently, the defendant is required to establish that he was aware of facts on which his comment was based (Lowe v Associated Newspapers [2006] EWHC 320, [74]). In the absence of such subjective knowledge the defendant has no defence. Under clause 3(4)(a) of the Bill, the defendant does not have to show that he or she was actually aware of fact(s) that would have justified an honest person holding the opinion. Rather, he or she must show only that such fact(s) existed at the time the statement was published. The current law imposes a duty on journalists and others when preparing an opinion piece to have facts in mind. Some reasoning and analysis from the facts (albeit not of a very high standard) is therefore insisted upon.

In our view, the current approach is the right one and there is no justification for jettisoning it. Passed into law, clause 3(4)(a) would positively invite irresponsible journalism. It would permit authors to publish in the expectation that often some fact might subsequently be found upon which to hang any challenged statement. It is unconscionable to take this step. It would permit many statements providing only that they were recognisable as comment, irrespective of whether they were consciously based on facts that were, or perhaps were believed to be, true. We doubt that the public sphere would be well served by these proposed changes. We would recommend that clause 3(4)(a) should read:

‘any fact of which the defendant was aware existed at the time the statement complained of was published’.

Clause 4: Responsible Publication on Matter of Public Interest

Clause 4 is said to be based on the existing common law defence in Reynolds v Times Newspapers ([2001] 2 AC 127) and is intended to reflect the principles established in that case. While we have reservations about the precise wording of the clause, the Government is to be congratulated for rejecting the argument for a wider public interest defence that could be defeated only by proof of malice. To adopt such an approach would be to privilege freedom of expression at the expense of reputation to a greater extent than any other than any jurisdiction of which we are aware.

So far as specific aspects of clause 4 are concerned, we note that the Reynolds list of relevant matters includes the ‘source of the information’. The omission of this factor from the Bill is surprising. Indeed, it is worth noting that the Canadian Supreme Court in articulating its version of the Reynolds defence recently regarded the status and reliability of the source as an important element of the defence (Grant v. Torstar [2009] 3 S.C.R. 640 – ‘this principle is especially vital when defamatory statements can be reproduced electronically with the speed of a few keystrokes’ (at [114])). While serious difficulties stand in the way of any claimant if the defendant claims that its sources are confidential, if he or she could establish that the defendant had relied on a single source known to be hostile to the claimant this would surely be powerful evidence that the defendant had not acted responsibly. It may be that this scenario would be taken into account by a court under clause 4(2)(g) as being relevant to the question of what steps were taken by the defendant to verify what was published. It would be preferable, however, if the court was required to have regard, where relevant, to the ‘status and reliability of the source’ as an additional factor.

Professor Alastair Mullis is the Head of Law School, University of East Anglia and Andrew Scott is a Senior Lecturer in the Department of Law, London School of Economics and Political Science.