Defamation Act 2013: A boost for free speech, Part 2: Public Interest and Privilege – Timothy Pinto

In this second part of four posts by Timothy Pinto of Taylor Wessing, he considers the changes to common law and statutory privilege which will result from the Defamation Act 2013. Part 1 on “Serious Harm, Truth and Honest Opinion” can be found here.

Publication on a matter of public interest (section 4)

Reynolds privilege is abolished under the 2013 Act. Instead, it will be

“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.”

In the new defence, there is no express requirement for the publisher to prove that it:

a) has met a standard of responsible journalism;

b) satisfied any or all of the Reynolds factors; or

c) acted both fairly and responsibly in gathering and publishing information.

Instead, assuming that the statement was on a matter of public interest, the issue will boil down to the defendant’s reasonable belief. In deciding this, “the court must make such allowance for editorial judgement as it considers appropriate”, as well as “all the circumstances of the case”. The defence seems on its face to be more flexible and more in favour of free speech than Reynolds. However, the court is likely to end up considering similar factors to those in Reynolds on the question of reasonable belief and we may be back to Reynolds, Jameel and Flood more or less, under a different name.

It seems likely that, where appropriate, the courts will consider that, if the defendant has not done sufficient checks and has written the article in an unbalanced and immoderate way, then it would not be reasonable to believe publication is in the public interest. It is likely that consideration of the steps taken by the defendant to verify the truth will often play a part. This is because the steps taken to verify must be disregarded from the assessment of reasonable belief in a neutral reportage situation (see below), and hence should not generally be disregarded in other cases.

It appears that the ‘reasonable belief’ will have a subjective and an objective dimension. The focus of both limbs of the defence is on the public interest, which is not defined. A crucial question is whether the English courts will adopt a moral or intellectual high ground on what is in the public interest (as the ECtHR did in its first Von Hannover decision for example) or whether they will be flexible in the context of more salacious stories. If they do the former, then the new public interest defence may be beyond the reaches of many red-top or celebrity stories. Our prediction is that the courts will apply the public interest test with flexibility but a defendant must show the court something convincing substantially beyond the tittle-tattle of footballers’ wives and girlfriends. It seems likely that scientific and academic debate will generally be considered by the courts to be in the public interest.

There is no provision stating that the defence is defeated by malice. However, this should be encompassed within the second limb of the new defence.

Neutral reportage

The 2013 Act codifies the neutral reportage part of Reynolds as follows:

“If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.”

On its face, this appears to codify the common law but as the ultimate test (reasonable belief that publishing the statement was in the public interest) is new, there may be scope for argument.

Peer-reviewed statements in scientific or academic journals (section 6)

The 2013 Act provides a qualified privilege defence for statements in scientific or academic journals if:

a)     the statement relates to a scientific or academic matter; and

b)     before the statement was published in the journal an independent review of the statement’s scientific or academic merit was carried out by—

 i)      the editor of the journal, and

 ii)     one or more persons with expertise in the scientific or academic matter concerned.

There is also a privilege for the publication:

a)     in the same journal of the assessment of the statement’s scientific or academic merit by one of the peer reviewers; and

b)    of a fair and accurate copy of, extract from or summary of the statement or assessment.

During the consultation process for the Defamation Bill, it was apparent that the scientific and academic community and their publishers were hoping for a stand-alone defence which would protect them from the chilling effect of actual, or a potential threat of, libel proceedings when discussing scientific or academic topics generally (as opposed to within the narrow confines of peer review). This defence does not achieve that and scientists, academics and their publishers will need to rely on another defence. In this regard, the combination of the ‘serious harm’ & ‘serious financial loss’ requirements and the more flexible ‘honest opinion’ and ‘publication on a matter of public interest’ defences should reduce the chill on honest scientific and academic debate to a degree (Of course, the defamation Act 2013 does not directly reduce the costs of defending a defamation claim, which is a contributing factor to any chilling effect on scientific and academic debate).

Expansion of statutory privilege (section 7)

The 2013 Act expands the absolute and qualified privileges set out in the 1996 Act. In summary, the main changes are:

a)     An extension of the privilege from reports of certain UK or EU proceedings or official documents to reports of equivalent proceedings or documents anywhere in the world.

b)    A new qualified privilege for fair and accurate reports of proceedings:

i)      at press conferences;

ii)     of scientific or academic conferences.

The main changes are set out in more detail in the table below. The table only highlights key changes. It is not a comprehensive list or description of the privileges available under the 1996 or 2013 Acts:

The expansion of the privilege to reports of public meetings and press conferences on matters of public interest anywhere in the world will be helpful for the media. It is not clear if a report of a company press release without a press conference would be included. This seems unlikely unless the press release forms part of a press conference or public meeting.

It should be remembered that the reporting must still satisfy the other conditions for the privilege to apply e.g. it must be fair and accurate, of public interest and for the public benefit and, where relevant, include a statement by way of explanation or contradiction if requested (see s.15 DA96).

The liability of intermediaries will be considered in the next and third part of this four part analysis of the Defamation Act 2013.

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‘.