This is the first of four posts by Timothy Pinto of Taylor Wessing where he provides analysis of the key provisions of the UK’s Defamation Act 2013 and its likely practical implications under English law. The four posts will cover: Serious harm, Truth and Honest opinion, Privilege, Intermediary liability, and Other key provisions.
The Defamation Act 2013 was enacted on 25 April 2013. In summary, the Act shifts the balance, between free speech and the right to reputation, in favour of free speech. In some areas this shift is likely to be significant (e.g. the hurdle for companies wishing to sue for libel), in other areas there may be little change in practice (e.g. the truth defence). At the time of writing (9 May 2013), most of the provisions are not in force and are awaiting implementation by Statutory Instrument. As this is new legislation, what follows is only an initial view which may change as things develop.
Serious harm (section 1)
Under the 2013 Act,
“a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”
It seems likely that, rather than creating a new definition of ‘defamatory’, the serious harm requirement is setting an additional hurdle for a claimant to prove, on top of the existing examples of defamatory meaning. If so, a claimant will therefore need to show that the words complained of, for example:
a) caused or are likely to cause serious harm to the claimant’s reputation; and
b) tend, for example, to:
i) lower the claimant in the estimation of right-thinking or reasonable members of society; or
ii) substantially affect in an adverse manner the attitude of others towards the claimant, etc.
Most claims brought by individuals are unlikely to be affected by the serious harm threshold. This is because most defamatory statements which are disputed or litigated are clearly likely to cause serious damage to a person’s reputation, the main issue being whether the defendant can prove truth or another defence. However, it is predicted that the threshold will increase the number of cases where either the claimant decides not to take action or the defendant resists offering any remedy. Possible, examples might include where:
- The claimant has a bad reputation anyway and it is in doubt whether the claimant’s reputation would be seriously harmed over and above his or her existing (suspect) reputation;
- The claimant needs to prove an innuendo identification and the people (with the special knowledge) who would identify the claimant would not believe the words would seriously harm the claimant’s reputation (under the previous law, this would generally not prevent the meaning being defamatory);
- There is limited publication in the jurisdiction and/or the claimant is not known in the jurisdiction;
- The meaning is borderline vulgar abuse, ‘pub talk’ or a mere criticism of goods or services; or
- Any damage was transient or short-lived due to a quick retraction, clarification or apology.
It should be apparent that any of these factors may also lead to a Jameel abuse argument being deployed by the defendant. Therefore, the serious harm requirement is likely to lead to more early strike out applications by defendants on both grounds.
Bodies trading for profit
One of the most important provisions in the 2013 Act states:
“For the purposes of this section , 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”.
In practice a for-profit company is likely to need to specify in its letter of claim and Particulars of Claim that the statement:
a) Has caused or is likely to cause the body financial loss;
b) What that loss is; and
c) That the loss is serious.
If it does not specify these things, the defendant may well insist on such details before responding substantively.
The serious financial loss requirement is likely to make it difficult for companies to sue for defamation. In practice, companies are going to be less likely to take action or even threaten to take action as a result of the new law. Defendants are more likely to be braver about criticising companies, appreciating the “serious financial loss” hurdle which companies face. This in turn is likely to lead to more actions by individuals associated with the company, e.g. the CEO or someone named in the article. They may argue that the article identified and was defamatory of them. Some officers of certain companies may argue that an allegation against the company is an allegation against them (to avoid having to prove the “serious financial loss”). But they will still need to prove serious harm – as to which see above – and the other elements a claimant has to prove.
It may be that companies will therefore prefer to take action against the press via whatever regulator is decided on, following the Leveson report, in respect of inaccuracies, rather than claiming defamation.
Truth (section 2)
Justification has been abolished in favour of a statutory truth defence. The defendant has to prove that “the imputation conveyed by the statement complained of is substantially true”. Section 5 of the 1952 Act is more or less transposed into section 2(2) of the 2013 Act with more modern language, with a reference to “seriously harm”, rather than “materially injure”, the claimant’s reputation. It seems likely that the legal principles underlying justification will probably continue to be applied by the courts
Honest opinion (section 3)
Fair comment is abolished. The honest opinion defence requires that:
a) the statement complained of was a statement of opinion;
b) the statement complained of indicated, whether in general or specific terms, the basis of the opinion; and
c) an honest person could have held the opinion on the basis of —
i) any fact which existed at the time the statement complained of was published;
ii) anything asserted to be a fact in a privileged statement published before the statement complained of.
Importantly, under the wording of the new defence, it appears that the commentator need not know the fact upon which an honest person could have held the opinion, at the time the statement was published. If so, this would release the defence from one of the previous shackles which sometimes made it difficult for defendants to rely on. The previous requirement that the comment be in the public interest does not appear either.
One question is whether the basis of the opinion, which must be indicated in the statement, must be the same as the fact (or privileged assertion) on the basis of which an honest person could have held the opinion. The wording is not entirely clear. According to the Explanatory Notes, the third condition (c) is an objective test. There seems to be a potential conflict between stating that the basis of the opinion must be indicated in the article but not apparently insisting that the basis of the opinion be in the commentator’s mind at the time of the article. It appears, therefore, that the defence could possibly succeed where:
a) the opinion indicates Fact A as its basis, where Fact A is in the mind of the commentator but false, and
b) an honest person could have held the opinion based on Fact B which is true but unknown to the commentator at the time of publication.
If this is how the courts interpret section 3, the defence can protect an honestly held opinion even if the commentator has grounded it on something which is false, provided there was other true factual support for the honest opinion. Of course, if the false statement of fact, which is indicated in the article, is defamatory of the claimant, then the defendant will need to rely on another defence in relation to that untrue fact.
The defence has retained some of its ancestor’s technical nature unfortunately, but it should ultimately protect honest opinions more readily than the fair comment defence allowed. Where claimants could previously be fairly confident if an opinion piece made significant factual errors, they may, under the new law, need to ask themselves whether there is another fact or privileged statement on which an honest person could have held the defamatory opinion about them.
Malice has been simplified to “The defence is defeated if the claimant shows that the defendant did not hold the opinion”. This is likely to be difficult for a claimant to prove in most cases.
Where a publisher publishes the opinion of another person (“the author”), then “the defence is defeated if the claimant shows that the defendant knew or ought to have known that the author did not hold the opinion”.
The key privilege defences of the Defamation Act 2013 will be considered in the second part of this four post analysis.
Timothy Pinto is Senior Counsel in the Trade Marks, Copyright & Media team at Taylor Wessing. This blog post has been reproduced from the article ‘Defamation Act 2013 – Taylor Wessing Analysis‘.