This is the second and concluding part of a Note on the Defamation Bill. The first part was published on Inforrm on 20 June 2012.
Clause 6: Privilege for Peer-reviewed Academic or Scientific Publication
We have serious reservations about clause 6 of the Bill which provides a form of qualified privilege to statements published in scientific or academic journals that have been subject to a peer review process.
We accept unequivocally that scientific and academic speech are important, and that the bowdlerisation of such speech due to the ‘libel chill’ is a pressing social problem. We note, however, that such speech is already well protected by the existing law (see, for example, Bowker v RSPB  EWHC 737 in which it was held that a critical statement published in the context of scientific debate is not easily read as imputing incompetence or recklessness; BCA v Singh  EWCA 350 (CA) in context of debate about medical science words are likely to be highly value laden and therefore readily characterised as opinion rather than fact).
What troubles us is the fact that the Bill accords greater protection to such speech than it does to other forms of public interest speech. Unless an argument can be made (and no such argument is made by the leading theoreticians on academic freedom – see Barendt, Academic Freedom and the Law, and Finkin and Post, For the Common Good) that peer-reviewed academic speech is somehow more ‘valuable’ than other forms of speech then it should not be provided greater protection. We protect free speech, and accept the risk of untrue and inaccurate speech, because of the contribution it makes to truth, democratic self-governance and self-expression. We do not protect it and accept the risk of untruth because in advance it was thought likely to be true (for instance, because, it has gone through a peer review process designed, at least in part, to ensure its accuracy).
According such a privilege 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.
Even if one concedes that a peer reviewed journal article should be presumed to be responsibly published, this does not justify according it the privilege in clause 6 (that the article is privileged unless shown to have been made maliciously). We can see an argument for a rebuttable presumption to the effect that an article that has gone through peer review is responsibly published. This may justify the shifting of the burden to the claimant to prove that the article was not responsibly published. It is does not explain why proof of malice should be the requirement. Such a requirement does not represent an appropriate balance between Article 8 protection for reputation and Article 10.
The reason why some consider it vital to lift the threat of libel action from academic and scientific commentary has little to do with the existing substantive law, and everything to do with the sheer cost of prospective embroilment in libel proceedings. This is only one illustration of the fact that due to an unwillingness on the part of Government to do the necessary hard thinking, this Defamation Bill addresses symptoms rather than causes. Clause 6 should be excised from the Bill.
Clause 8: Single Publication Rule
Clause 8 replaces the existing multiple publication rule under which every new publication of a defamatory imputation gives rise to a separate claim, with a single publication rule. We have offered a critique of this proposal elsewhere, and will do so more fully in a forthcoming academic paper dedicated to the theme. We accept that the existing law may, particularly when applied in the online context, generate injustice and social detriment by creating potentially perpetual liability. The proposed new rule, however, is not appropriate in concept. Neither will it ‘work’ in practice. It will not provide the ‘safe harbour’ that is intended to create. It may in fact become pathological from the publisher’s perspective. Moreover, there is a preferable and easily applied alternative available.
Torts flow from harms caused. Harms in this context are caused not by the act of publication, but rather when the reading occurs. At whatever remove it is made from the first uploading of the impugned statement, each reading has the potential to harm the reputation of the person defamed.
While the libel reform campaigners have insisted that the law has somehow not ‘caught up’ with the Internet, most serious academics see the problems caused by the perpetual availability of damaging publications online as an extremely pressing concern – see, for example, Solove, Daniel, The Future of Reputation: Gossip, Rumor and Privacy on the Internet (Yale University Press, 2007). Interestingly, in the Second Reading debate, Nadine Dorries MP give a personal illustration of the potential harms caused by publication made online even many years ago.
Secondary publication after the elapse of time may arguably, perhaps counter-intuitively, be more damaging than much initial publication. Often, only those with a particular interest in a subject or individual will be motivated to access the material at the later point in time, so that any impact on reputation may be especially poignant. In terms of damage to reputation, what often matters is who is reading material at a given time. On occasion, the new rule will frustrate justice. Ultimately, it is inappropriate to address one admitted problem by pretending that another does not exist.
In terms of the workability of the new rule, a problem arises because the ‘right to reputation’ has been recognised as falling within the Article 8 right to respect for private life. The proposed rule is not absolute, but admits of circumstances in which the limitation period may be lifted. This will be done after consideration of ‘all the circumstances of the case’, including the reasons for the delay on the part of the claimant. Judges must interpret legislation as far as it is possible to do so to cohere with Convention rights. Faced with a claimant who argues that a reading of a defamatory online publication that took place yesterday, and which might be emulated tomorrow, has had adverse consequences for his or her Article 8 right to reputation, no judge will be able to refuse to lift the limitation period (at least for the years after first publication when no especial difficulty would be caused to the defendant). To do so would be an obvious infringement of both Article 8 and Article 6. We would suggest that the judge will find him- or herself in this position on every occasion that the harm to reputation might be described as ‘serious’ (as per clause 1). This will mean that the supposed safe harbour will prove illusory.
Worse than this, relative to the current position the outcome would be pathological for the defendant. Currently, a defendant would be liable only for harm attributable to publication that has occurred within the preceding year (the extent of which publication the claimant would be required to demonstrate – Al Amoudi v Brisard  EWHC 1062). In future, the defendant will be liable for all harms caused beginning from the date of first publication which are likely to be very much more significant.
We would agree that reform of some nature is necessary to prevent Loutchansky-style litigation from exercising a chilling effect on the maintaining of online archives. In preference to clause 8, there are two options. On one hand, one might simply excise clause 8 as poorly-conceived law and leave the judge to assess whether proceedings should be permitted in respect of recent publications in accordance with the clause 1 test. If no significant publication has occurred recently, then no proceedings would be permitted. If recent reading of the material had caused Article 8 harm, however, this option would leave the publisher liable. The position under this approach would in practice be little different to that in the proposal, except that the risk of pathological consequences would be eradicated.
Alternatively, one might retain the multiple publication rule, but also introduce a new defence of ‘non-culpable republication’. That defence would be available to an archivist after the lapse of one year after the ‘first publication’ of the story in question. To avail of the defence, the archivist would be required if challenged to append a notice to the archived online article (or, perhaps, in the case of a hard-copy archive to a register of notices relating to archived articles). Such a notice should indicate that a challenge to the accuracy of the original story had been made under the new statutory defence. By way of a specimen, one might suggest the following:
‘A challenge to the accuracy of the following article has been made by [X] under section [x] of the Defamation Act 2012. Specifically, it is asserted that [1, 2 and 3]. To preserve the integrity of the original article no direct amendment thereto has been made.’
Should the publisher in fact be persuaded of the inaccuracy of the original article on the approach of the prospective claimant, he or she may choose instead to amend the archived article or to attach a correcting notice. Importantly, the archivist-publisher could choose not to append a notice on the request of a prospective claimant. This would allow him or her to assert the accuracy of the original piece, and to retain the option of fighting an action where it was deemed desirable or necessary to do so. Presumably this would happen only where the archivist-publisher fully believed him- or herself able to rebut a libel claim.
The advantages of the non-culpable republication approach in the context of archiving are significant. As with the single publication rule, the integrity of the archive as a facet of the historical record is maintained. In addition, however, future users of the archive are left in no doubt that further investigation is necessary before statements made therein can be simply adopted. The force of the alleged libel would thereby be mitigated. Moreover, any inclusion in the notice of the competing perspective of the person whose reputation had been impugned would often add to the discursive value of the original piece. We would consider this to be the preferable approach to reform in this area.
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.