Defamation Act 2013, commencement and some initial reactions

As we mentioned in a post last week the Defamation Act 2013 received Royal Assent on 25 April 2013.  It is available on the “resources” section of the blog – although without the Explanatory Notes (which have still not been published).  The 5RB website provides a short summary of the Act’s provisions.

The Government has indicated that the Act will be brought into force later this year.  It will then apply to causes of action which accrue after commencement (section 16(5)).  As the limitation period for libel is 12 months, this means that that cases under the old law will still be able to be brought  in late 2014 – so “old style” libel cases will be running well into 2015 or 2016.   Cleland Thom writes about this in the Press Gazette (although the headline “Keep the bubbly on ice, Defamation Act won’t come into to force until late 2014″ is a little misleading – the Act will be in force, it just won’t apply to every new claim until 12 months after commencement).

The Ministry of Justice issued a press release with a quote from Lord McNally

“This Act represents the end of a long and hard fought battle to reform the libel laws in England and Wales. Throughout the process all parties have listened and worked together to produce legislation that delivers the reforms required in the 21st century. Everyone involved can be rightly proud of this Act and the protections and freedoms it offers.”

The Act has, unsurprisingly, been welcomed by those who have campaigned for Libel Reform – although there has been little critical analysis of how far its provisions will actually assist the “scientists, bloggers and campaigners” whose concerns led to the success of the campaign in the first place.

Index on Censorship described the Act as a “Victory for Free Speech”, summarising the position in the following terms:

“The new law protects free speech. There is a hurdle to stop vexatious cases. We now have a bar on libel tourism so non-EU claimants will now need to prove that harm has been done here. For the first time there will be a statutory public interest defence that will ask defendants to prove they have acted “reasonably” (a better test than the more burdensome Reynold’s test of responsible publication). There is also a hurdle to stop corporations from suing unless they can prove financial harm”.

The Defamation Act was also welcomed by English PEN which suggested that

“This new law expands the space for free speech in the UK.  It also curbs the problem of ‘libel tourism’, where overseas writers were being threatened by lawyers based in London”.

Although English PEN’s director, Jo Glanville, sounded a note of caution in a Guardian piece entitled “we’ve got a defamation bill but it’s how we act that matters”

Tony Jaffa wrote about the effect of the Act on the regional press on “Hold the Front Page”, concluding:

“But overall, last week was a good week for journalism.  As writer Simon Singh said, we now have legislation which will “change the landscape of free speech in Britain”.  I have a feeling that every regional journalist and publisher will heartily agree with him”.

To give a sense of how a Bill changes as it passes through both Houses of Parliament, Robert Sharp’s blog  created “a Defamation Bill (Tracked Changes) document [doc]”.

We hope to post some detailed analysis of the Act’s provisions over the next few months.  All contributions are welcomed.