Defamation Act 2013: A sensible balance or a step back? – Philip Steele

The Defamation Act 2013, which came into force on 1 January 2014, is a missed opportunity to provide clarity over precisely which elements are required in order to establish a claim for defamation. The courts have, over the years, made numerous attempts to define what is defamatory.  But Parliament missed the opportunity this legislation provided to bring clarity to the issue.

The Act essentially provides one piece of the jigsaw but it appears that we must still rely on other elements of the existing case law in order to decide whether a statement is defamatory.  This piecemeal approach hardly increases accessibility to the law and, if anything, creates further complexity and scope for legal debate.

Section 1 of the Act attempts to discourage trivial claims by introducing a new threshold test – it provides that a statement will not be defamatory unless its publication has caused (or is likely to cause) ‘serious harm’ to the reputation of the claimant.

What amounts to serious harm will be decided on a case-by-case basis, although the Act requires a business (defined as a “body that trades for profit”) to show that the statement has caused, or is likely to cause, “serious financial loss”.

The new test certainly represents a higher hurdle than the current law, and if a claimant fails to get over it, the claim will fail.

The test of serious harm will be a key battleground at the early stage of many libel claims. It remains to be seen how the courts will interpret the new test and, in particular, what type and degree of evidence a claimant will have to produce to satisfy it.

The Act also introduces new statutory defences:

Section 2 creates the new defence of “truth”, which replaces the defence of “justification”.  It will apply if the defendant can demonstrate that the imputation conveyed by the statement complained of is substantially true.   The stated aim of the new defence is to “broadly to reflect the current law while simplifying and clarifying certain elements”.

In contrast to the serious harm test, accessibility has undoubtedly been improved in this area – the defence is now set out in a few concise of paragraphs of plain English, as opposed to many pages of law reports.

But it remains to be seen whether the simple, user-friendly, words in Section 2 will be able to deal with the numerous legal and practical issues which commonly arise during the course of disputes over the truth of defamatory statements.

Section 3 introduces the defence of honest opinion, which replaces the fair comment defence. A defendant seeking to rely on the honest opinion defence will have to satisfy the following three conditions:

• The statement must be an expression of opinion and not an assertion of fact;
• It must indicate the basis of the opinion; and
• The opinion must be one that an honest person could have held on the basis of a fact which existed at the time the statement was published, or a privileged statement published before the statement in question.

Although the new defence closely resembles the existing law, it is wider in some respects – for example, there is no longer a requirement that the opinion should be on a matter of public interest.

As with the defence of truth, accessibility is improved but, again, the Act will abolish a well established and uncontroversial body of existing law and it remains to be seen whether the new provisions will create more problems than they will solve.

Section 4 of the Act brings in a new defence for those who are publishing material which they reasonably believe is in the public interest.

It replaces the existing Reynolds defence, which it is intended to reflect. But it also seems to seek to strengthen freedom of speech – it obliges the court to “have regard to all the circumstances of the case”and to “make such allowance for editorial judgment as it considers appropriate” in deciding whether a publication was in the public interest.

Section 5 of the Act creates a new defence for operators of websites who can show that they did not post the statement complained of.  But it is subject to a number of conditions and section 5(3) provides that it will be defeated if a claimant can show that:

• It was not possible for the claimant to identify the person who ‘posted’ the statement;
• The claimant gave the website operator a notice of complaint in relation to the statement; and
• The website operator failed to respond to respond to the notice of complaint in accordance with any provision in the accompanying regulations.

The defence will also fail, even in respect of an identifiable author, if a claimant can establish that the website operator acted with malice in relation to the posting of the statement.

The new law and regulations do not affect the existing defences available to website operators, which already provide sufficient protection in the large majority of cases. Equally, the changes fall short of providing claimants with a guaranteed route to either removal of the offending material or contact details for the author.

Section 6 of the Act creates a new defence to protect scientists and academics publishing in peer-reviewed journals. The publication of a statement in such a journal is privileged, as long as certain conditions are met.

Section 7 of the Act updates and extends the circumstances in which the existing defences of absolute and qualified privilege are available.

Section 8 introduces a single publication rule. It replaces the rule that every publication of defamatory material gives rise to a fresh cause of action which is subject to its own limitation period. The change is aimed at reducing the number of libel actions brought in respect of historic publications.

The new rule prevents a claimant from bringing a claim in relation to publication of the same material by the same publisher after the expiry of the one-year limitation period from the date of the first publication of that material to the public, or a section of the public.  But it does not apply where the subsequent statement is published by somebody else or if the manner of publication was materially different from the original.

It will be interesting to see how this single publication rule works in practice – but would-be claimants will need to keep a particularly close eye on time limits in cases involving any republication to reduce the risk of their claim being time-barred.

Section 9 of the Act is intended to address the issue of libel tourism by introducing a new test for acceptance of jurisdiction in defamation cases by courts in England and Wales.  It applies when a defamation action is brought against a person who is not domiciled in the UK, an EU member state or a state which is a party to the Lugano Convention.

The new test says a court does not have jurisdiction to hear and determine such a case unless it is satisfied that, of all the places in the world in which the statement complained of was published, this jurisdiction is “clearly the most appropriate place in which to bring an action in respect of the statement”.

Section 10 limits the circumstances in which an action for defamation can be brought against secondary publishers of an allegedly defamatory statement, such as booksellers – it provides that the court will no longer be able to hear an action against them unless it is not reasonably practicable for an action to be brought against the author, editor or publisher.

Section 11 of the Act removes the existing presumption that defamation cases should be tried by jury. The removal of this presumption means that defamation cases will be tried without a jury unless the court orders otherwise.

It is expected that this change will mean that trial by jury will be a thing of the past and will be a very rare occurrence in future libel claims.

But the changes are not accompanied by any guidance or commentary as to when a jury trial might be appropriate, which might give rise to uncertainty and litigation.

While many of the reforms in the Act help support freedom of expression; section 12 is geared towards trying to provide an effective remedy for those who have been defamed, by giving the court the power to order publication of a summary of its judgment.

Under the new laws, the wording of any summary and the time, manner, form and place of its publication will be matters for the parties to agree. If the parties are unable to agree, the court will give directions. It is expected that section 12 orders will become standard in the majority of successful defamation actions.

So, will the Act strike the right balance between the right to freedom of expression and the protection of reputation?

The answer is likely to hinge on the court’s interpretation and application of the new provisions of the Act, which interferes with a significant amount of existing libel law that was relatively settled, clear and uncontroversial.

The upshot is likely to be that litigation increases, at least in the short term, as the new law is tested and the case law is re-established.

Philip Steele is a solicitor with the commercial litigation department at the Liverpool office of law firm Brabners.