The Explanatory Notes to the Defamation Act 2013 have now been published. It is important to understand the status and value of these notes in relation to the construction of the Act. As the notes themselves make clear “They have been prepared by the Ministry of Justice in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament” (para 1).
Explanatory Notes are admissible aids to the construction of the statute insofar as they “cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed” (Westminster City Council v National Asylym Support Service  UKHL 38 ). It is however, impermissible
“to treat the wishes and desires of the Government about the scope of the statutory language as reflecting the will of Parliament. The aims of the Government in respect of the meaning of clauses as revealed in Explanatory Notes cannot be attributed to Parliament. The object is to see what is the intention expressed by the words enacted” .
We draw attention to a number of interesting points made in these Explanatory Notes.
- At paragraph 11 the Notes suggests that Section 1 (“serious harm”) “raises the bar for bringing a claim” and that the new requirement that bodies which trade for profit show that a statement “has caused or is likely to cause the body serious financial loss” is consistent with the new serious harm test.
- In relation to the new defences of “Truth” (Section 2) and “Honest Opinion” (Section 3) the paragraphs 13 and 19 of the Explanatory Notes suggest that these “broadly reflect the current law while simplifying and clarifying certain elements”.
- The Notes are clear that the new defence of “publication on a matter of public interest” (section 4) is not intended to be a new departure but is, rather:
“based on the existing common law defence established in Reynolds v Times Newspapers and is intended to reflect the principles established in that case and in subsequent case law“.
As indicated by the Minister in the House of Commons on 16 April 2013, the Notes say that
“The intention in this provision is to reflect the existing common law as most recently set out in Flood v Times Newspapers“
In other words, contrary to what has been stated by some commentators, section 4 does not establish a “new public interest” defence but simply codifies the common law as developed by the Courts.
- The notes to section 9 (Action against a person not domiciled in the UK or a Member State etc) indicate that the section “aims to address the issue of “libel tourism” (a term which is used to apply where cases with a tenuous link to England and Wales are brought in this jurisdiction)” but go on to point out that does not apply to a person domiciled in a EU Member state or a state which is party to the Lugano Convention. In relation to the provision of section 9(2) – which says that a court does not have jurisdiction to determine an action against a person domiciled outside the countries mentioned unless the court is satisfied that, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement, the Notes say (at paragraph 66).
“It is intended that this will overcome the problem of courts readily accepting jurisdiction simply because a claimant frames their claim so as to focus on damage which has occurred in this jurisdiction only. This would mean that, for example, if a statement was published 100,000 times in Australia and only 5,000 times in England that would be a good basis on which to conclude that the most appropriate jurisdiction in which to bring an action in respect of the statement was Australia rather than England. There will however be a range of factors which the court may wish to take into account including, for example, the amount of damage to the claimant’s reputation in this jurisdiction compared to elsewhere, the extent to which the publication was targeted at a readership in this jurisdiction compared to elsewhere, and whether there is reason to think that the claimant would not receive a fair hearing elsewhere”.