On 25 April 2013, nearly three years after the introduction of Lord Lester’s Defamation Bill [pdf], the Defamation Act 2013 received Royal Assent. The Bill was introduced in the House of Commons on 10 May 2012 and completed its final stage, House of Commons “Ping Pong” on 24 April 2013. It will come into force on “such day as the Secretary of State may appoint”.
The Bill has generated controversy throughout its history. It was strongly supported by Libel Reform campaigners – who nevertheless remained unhappy at the absence of a “New York Times v Sullivan” libel defence. A number of provisions of the Bill were criticised by academics, for example, Professor Alastair Mullis and Dr Andrew Scott (see their posts here and here on Inforrm). On 5 February 2013, a group of backbenchers put down controversial “Leveson amendments” to the Bill. This was condemned by supporters of the bill, but the amendments were removed in the House of Commons on 16 April 2013 without opposition, the Leveson Royal Charter having by then been agreed.
The final row concerned a provision in the Bill – inserted in the House of Lords in February 2013 – to restrict the ability of corporations and those performing public functions to sue for libel. The Commons overturned this on 16 April 2013 but the Government introduced a compromise in the House of Lords on 24 April 2013. Section 1(2) of the Act now provides that
“harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss”.
Opinion is divided as to whether the Act will make any significant difference to English libel litigation. The Libel Reform Campaign has produced an “Initial summary assessment” [pdf] which, in particular highlights the following provisions – section 1 (the “serious harm test”), section 4 (“Publication on a matter of public interest”), section 5 (a new defence for “Operators of websites”) and section 9 (action against a person not domiciled in the UK).
One other provision which will make a small but significant difference is section 11 – which removes the right to trial by jury in a libel action.
These are, in general, marginal changes which will only affect a small number of libel actions. As with the original bill proposed by the Government, and the version which was first put before Parliament, our overall verdict remains “mostly harmless”. The new “Publication on a matter of public interest” defence was said by the Minister in the House of Commons to be intended to “capture the essence of the Flood judgment” (see our post here). The Minister said
We are satisfied that our wording accurately captures the essence of the Flood judgment. In addition, the emphasis that the Government have placed—in debates, and which I reiterate today—on our intention to reflect Flood will leave the courts in no doubt that that is the case”.
In other words, the “new” defence is intended to reflect – but not change the common law. The “public interest” defence will be the same after the Act comes into force as it was before.
The Act, unfortunately, missed the opportunity to produce radical revisions to English libel law – by, for example, introducing “real remedies” in the form of declarations of falsity or orders for the publication of corrections. The new “power to order a summary of a judgment” to be published (section 12) is only available after judgment for the claimant.
We have added the Defamation Act 2013 to our home page “resources” box – and we will add the Explanatory Notes when they become available.