A lot has been said about the new Defamation Act. Some have welcomed it as the dawn of a new era for freedom of expression, others as a likely to lead to the suppression of genuine claims. Regardless of what people think, it is the new law, and as a new law that has not yet been tested in England and Wales, one can only hypothesise as to what the results may be.
Surprisingly though, it has been partly tested in Ireland. The argument is, if it has worked for Ireland, why would it not work for the England and Wales? A comparison of the two could be a good indication of what the future holds.
Section 1 – Serious Harm
The Irish Defamation Act, 2009 is a statute reforming the law of defamation, however without affecting the common law in the area ( section 3(2) ); preservation of the existing law is something which the two acts have in common.
The Irish courts look at the repercussions of a defamatory comment in order to assess damages, or even the outcome of the case itself (when in preliminary stage). At the moment, in Ireland, the tort of defamation does not require ‘proof of special damage’ in order to be actionable (section 6(5) ). It would seem as though the lack of the said requirement could have opened the floodgates, and yet it has not; it is counterbalanced by a number of defences. Most of these defences are just now given statutory effect in England and Wales with the 2013 Act (section 2 ‘Truth’, section 3 ‘Honest Opinion’, section 4 ‘Public Interest’). One would assume these defences would be considered a sufficient deterrent to unnecessary litigation. Apparently not.
For a statement to be defamatory, according to the 2013 Act, it must have caused, or be likely to cause, ‘serious harm’ to the reputation of the claimant – ‘serious financial loss’ if the claimant is a company trading for profit. The meaning of these terms is left to the courts to be assessed. Likewise, in Ireland, the courts are also left to assess what is defamatory: a statement that ‘tends to injure a person’s reputation in the eyes of reasonable members of society’. Reasonably (pun intended), the ‘serious harm’ clause is implied, as the Irish courts have always taken into account the seriousness of that injury; the Irish Courts did not need the legislator to oblige them to apply human reason, it is a judge’s job to do so.
Could this mean that Section1 could pose no real threat to justice, but is simply superfluous?
Do we trust the English courts so little as to readily assume its wording has set the path to abuse?
Section 5 – Operators of Web Sites
Section 5 seems to be the outcome of the Reg. 19 of the EC Regulations of 2002 (Directive 2000/31/EEC) regarding certain legal aspects of inter alia E-Commerce, and the dicta in the case of Kaschke v Gray  EWHC 690 (QB). The new provision adds a new layer of complexity in the area of internet defamation. To sum it up, it is a defence for an operator to show that they were not the initiator of the defamatory publication, or that they had control thereof (eg identification or the original poster).
Although there is no equivalent provision in the 2009 Act, Irish lawyers have relied heavily on the EC Directive (Irish equivalent Regulations of 2003), such as in the case of Mulvaney & Ors v The Sporting Exchange Ltd (t/a Betfair)  IEHC 133, a case that was thoroughly examined in Kaschke.
The general policy seems to have followed the same line of reasoning in both jurisdictions so far, although section 5 can potentially create new, unnecessary difficulties, especially when read in conjunction with section 9.
Section 9 – Jurisdiction
This section puts barriers in the way of claim against persons domiciled in states which are not signatories of the Lugano Convention and not EU Member States. Using a colloquial expression, one could describe the policy behind this section as ‘dodgy’.
The reason behind this provision is said to be the avoidance of the ‘libel-tourist’; the litigant that chooses to bring their case in England, in order to take advantage of a more favourable set of legal rules. Another argument in favour of section 9 could be the lack of realistic enforcement measures and the avoidance of futile litigation. It is very hard to enforce a decision of the English Courts in a jurisdiction far away, in which it has no effect.
But the section does absolutely nothing to protect the businesses domiciled in England and Wales. In contrast, the Irish courts have jurisdiction if the plaintiff proves that the defendant is either domiciled in Ireland, or that the imputation took place/had an effect within the borders of the Country. See, for example, McKeogh v John Doe  IEHC 95, or the recent jurisdictional issues in the cases of Coleman and CSI Manufacturing (reported on Inforrm here).
Let us take the example of TripAdvisor.com – a website strictly domiciled in the US. Any unidentified member can start a section on any business, from which can flow a number or reviews. Thousands of English businesses are already being reviewed on that website, and although subject to approval, bad reviews are indeed posted. Does section 9 mean that a small business owner damaged by an anonymous review has to sue in the US Courts? In practice, it means that he is left without a remedy.
Section 8 – Single Publication
Section 11 of the Irish 2009 Act provides for a single cause of action against multiple publication of the same defamatory statement. The 2013 Act lowers the threshold again by adding the word ‘substantially’. This means that a similar publication would still fall under the ‘single publication’ rule in England and Wales, or even one of a similar effect, should one wish to take the interpretation further. In short, one can blow a million different defamatory statements into the universe, and only be liable once.
The single publication rule’s aim is to deter unnecessary litigation; it appears as though the approach taken with the 2013 Act is to reduce awards for damages as, surely, multiple actions for different statements can cumulatively result in a bigger award – a single action cannot, usually, have the same result. Since damages are of a vindicatory character (other than compensatory), it could be argued that the said provision shrinks the magnitude of the tort.
After a comparison of the policy in both jurisdictions, it is obvious that the English 2013 Act poses difficulties for both legal and natural persons, the Irish 2009 Act does not – it has been taken more than a mere ‘step further’.
If you were a business, where would your preferred place of domicile be?