News: Defamation Bill as amended by the House of Lords – where are we now?

The Defamation Bill had its “Report stage” in the House of Lords on 5 February 2012.  It is scheduled to be back before the House of Lords on 25 February 2012 for “Third Reading”.  It should then go back to the House of Commons.

A number of amendments were made to the Bill at the Report Stage.

First, as widely reported, a new clause 2 and Schedules 1 and 2 were added as as result of an amendment table jointly by Lords Puttnam and Mackay and Baronesses Boothroyd and Scotland.

Clause 2 is headed “Arbitration service for defamation and related civil claims against against members of Independent Regulatory Board”.  It  provides curious partial implementation of the recommendations of the Leveson Report – with the Lord Chief Justice setting up a “Defamation Recognition Commission” which, in turn, certify “Independent Regulatory Boards”.  Such boards are required to provided a “recognised arbitration service”.  The court is then required to take into account, when deciding costs and damages, whether either party has chosen not to use the arbitration service.

Libel reform campaigners have complained that the bill is “now in thrall” to a “politically motivated Leveson clause” – but the amendment had strong cross party and cross bench support (see our post here) and is a clear expression of frustration at the Government’s failure to take action on the Leveson recommendations.  Although there has been no public announcement, there seem to have been private “threats” by Conservative opponents of Leveson that, if this clause remains in place then the whole Defamation Bill will be withdrawn.   Supporters of the amendment have indicated an intention to make it more “Leveson compliant” at Third Reading.

Secondly, and with much less public attention, many of the same Peers who voted for the new clause 2 also voted (again, against the Government) for a new clause 3.  This is headed “Non-natural persons” and provides that

(1)  This section apples to an action for defamation brought by—

(a)  a body corporate;

(b) other non-natural legal persons trading for profit; or

(c) trade associations representing organisations trading for profit. 

(2)  The permission of the court must be obtained in order to bring an action to which this section applies.

(3) The court must strike out an application under subsection (2) unless the body corporate can show that the publication of the words or matters complained of  has caused, or is likely to cause, substantial financial loss to the claimant.

(4) Non-natural persons performing a public function do not have an action in  defamation in relation to a statement concerning that function.

The drafting is curious but the intention appears to be to prevent companies and other “bodies corporate” from suing in libel unless they can show the the publication caused (or was likely to cause) “substantial financial loss”.  Clause 3(4) is curious as it might extend the ability of public bodies to sue in defamation in certain circumstances.

Third, in the “public interest” defence provision – now clause 6 “Publication on a matter of public interest”, a new clause 6(2) has been inserted so that clauses 6(1) and (2) now read

(1) It is a defence to an action for defamation for the defendant to show that— 

(a)  the statement complained of was, or formed part of, a statement on a  matter of public interest; and 

(b) the defendant reasonably believed that publishing the statement complained of was in the public interest.

(2) Subject to subsections (3) and (4) in determining whether the defendant has shown the matters mentioned in subsection (1) the court must have regard to all the circumstances of the case.

The precise effect of this provision remains obscure.  It appears that its supporters believe that it, in substance, reproduces the common law defence known as the “Reynolds defence” – with subtle refinements which are difficult to discern.   Obscurely, the “Reynolds defence” is abolished by clause 6(6) – a provision which is, presumably, intended to cover Jameel and Flood as well.

Fourth, minor amendments have been made to the former clause 5 “Operators of websites” (now clause 7).

Fifth, a new sub-clause has been added to clause 15 which has been renamed “Order to remove statement of cease distribution etc” (it was previously clause 13, entitled “Order for the removal of defamatory statement from website”).  Clause 15(1) now reads

(1)  Where a court gives judgment for the claimant in an action for defamation the court may order— 

(a) the operator of a website on which the defamatory statement is posted to remove the statement, or

(b) any person who was not the author, editor or publisher of the defamatory statement to stop distributing, selling or exhibiting  material containing the statement.

The new clause means that a claimant who obtains a judgment in defamation can obtain orders against websites or others involved in distribution etc of defamatory material even though he would not (as a result of clauses 7 and 12) have any cause of action against them.

The fate of the Defamation Bill may now depend on whether the Conservative members of the Government are prepared to honour their promise to implement the recommendations of the Leveson Report – in a way which satisfies Labour and the Liberal Democrats.  If the Government does not bring forward acceptable proposals then the amendments in clause 2 and the Schedules are likely to remain in the Bill.  If that happens the Conservatives could then renege on their manifesto commitment and abandon a Queen’s Speech Bill – in order to avoid implementing the recommendations of an inquiry which they themselves set up.

The next few weeks are likely to be interesting ones for those who follow press and libel reform.