In this final part of four posts by Timothy Pinto of Taylor Wessing, assessment is provided on further key provisions of the Defamation Act 2013. These are the single publication rule, action against a person not domiciled in the EU, the presumption of trials by judge, and publication by losing defendants of a summary of the court’s judgment. Part 1 was on “Serious Harm, Truth and Honest Opinion“, Part 2 on “Public Interest and Privilege” and Part 3 on “Intermediary liability“.
Single publication rule (section 8)
The limitation period for defamation claims is one year from the date on which the cause of action accrued. The 2013 Act establishes a single publication rule which should prevent, amongst other things, indefinite liability for online publications, including internet archives. Thus, the limitation period should be one year from the date of first publication of the article. In particular, the section applies if a person:
a) publishes a statement to the public (“the first publication”), and
b) subsequently publishes (whether or not to the public) that statement or a statement which is substantially the same.
The rule is that
“any cause of action against the person for defamation in respect of the subsequent publication is to be treated as having accrued on the date of the first publication”.
“does not apply in relation to the subsequent publication if the manner of that publication is materially different from the manner of the first publication”.
The key issue will be whether the manner of the subsequent publication is materially different. Factors the court may take into account include “the level of prominence” and “the extent of the subsequent publication”. Examples of cases where the section will need to be considered include:
- a new link to a news article, in the publisher’s internet archive;
- a repeat of a broadcast;
- an old obscure article becoming very widely read after a newsworthy event takes place and/ or the article gets tweeted around the world;
- a new edition of a book.
On the wording of the Act, the single publication rule only appears to help a person who published both the first and the subsequent publication. It does not seem to apply to a second person who publishes the same statement for the first time. In other words, if a different website owner or broadcaster re-publishes / re-broadcasts old material, then they cannot seemingly rely on the rule since they are not the person who published the first publication.
Action against a person not domiciled in the EU (section 9)
To help prevent certain libel tourists litigating in England, the 2013 Act gives the court power to refuse jurisdiction unless it is satisfied that England is the most appropriate jurisdiction.
The provision applies to actions for defamation against a person who is domiciled outside the EU, Iceland, Norway and Switzerland. The Act states that
“a court does not have jurisdiction to hear and determine an action … unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement”.
This appears to mean, for example, that a person could not bring a libel action against a US media defendant over publication in a US newspaper (which is also read in England), unless England is clearly the most appropriate place to sue. In such a case, the court would likely consider that the claimant could sue in the US, particularly if the number of English readers is far less than US readers.
But an important factor may be the place where the claimant has a reputation. If the claimant is an American (perhaps hoping to take advantage of England’s more claimant-friendly laws than in the US), then the English court is likely to strike out the claim. But if the claimant is English and living in England (without a particular reputation in the US), then it may be that the court might seize jurisdiction on the basis that the claimant’s reputation has been damaged in England and not in the US. It appears from the wording of section 9 that if the court is in doubt, then it should refuse jurisdiction on the basis that England is not “clearly the most appropriate place”.
Interestingly, the Act also provides that
“references … to the statement complained of include references to any statement which conveys the same, or substantially the same, imputation as the statement complained of”.
This appears to mean that if substantially the same imputation had been made in e.g. the US by a defendant domiciled in the US, the court may take into account that the claimant might have more appropriately been able to take action against the defendant in the US, rather than England even if the later publication by the same defendant is only in England.
Trial to be without a jury unless the court orders otherwise (section 11)
The 2013 Act will remove the presumption that defamation cases shall be tried with a jury in the Queen’s Bench Division. The position under the new law will likely be that a defamation action “shall be tried without a jury unless the court in its discretion orders it to be tried with a jury”: s.69(3) Senior Courts Act 1981.
The result overall is likely to be that most defamation actions can be determined quicker, more efficiently and at less cost. This is because the court does not need to leave issues for a jury to determine (e.g. a meaning which is capable of being defamatory) and can instead make an early determination of the actual meaning. The early determination of meaning and other issues can help parties more quickly assess their chances of winning, without waiting for a jury to decide.
Power of court to order a summary of its judgment to be published (section 12)
The Act gives the court power, if the claimant wins, to order the defendant to publish a summary of the judgment. The legislation also states that:
- The wording of any summary and the time, manner, form and place of its publication are to be for the parties to agree.
- If the parties cannot agree on the wording, the wording is to be settled by the court.
- If the parties cannot agree on the time, manner, form or place of publication, the court may give such directions as to those matters as it considers reasonable and practicable in the circumstances.
Defendants are likely to be reluctant about giving prominence to the summary and there are likely to be disputes about the positioning and wording of the summary. On the “time, manner, form and place of publication”, the court can only give “directions”. It is not clear if the court can actually order these four things (as it can for the wording of the summary) if the parties cannot agree.
For defendants who are not publishers or broadcasters, it is not clear where they would publish a summary if ordered to do so. It may be that a claimant seeks publication of the summary in a relevant trade magazine or a local or national newspaper, whereas the defendant would argue that publication of the summary should not be ordered at all.
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