The Defamation Act 2013 came into force on 1 January 2014 offering better protection for freedom of expression and reforming the libel laws of England and Wales that had become in the words of leading parliamentarians a “national humiliation”.
The Act did not come out of nowhere – but arose after a series of libel cases (highlighted in the Libel Reform Campaign’s report ‘Free Speech Is Not For Sale’) demonstrated how chilling to freedom of expression the law of libel had become. A cross-party consensus developed with the Conservative, Labour and Liberal Democrats all committing to reform in their last general election manifestos after 60,000 people backed the Libel Reform Campaign’s call for change. Over 100 civil society groups and a multitude of libel reform heroes joined the campaign which was led by English PEN, Index on Censorship and Sense About Science.
Since the beginning of the year, there have been a series of comment pieces on INFORMM, first by Philip Steele who sees the new law as “missed opportunity” that will increase litigation, followed by Paul Tweed a renowned libel reform critic who predictably sees the Act as a possible “economic own goal”. These arguments, made before, were subject to unparalleled scrutiny by parliamentarians. At the very beginning of our campaign, our call for a codified public interest defence was attacked for its potential to lead to costly new case law. Others were unconvinced that we had got the importance balance right between the right to freedom of expression and the right to respect for private life (of which reputation is a part).
We disagreed with this analysis and but more importantly so did the parliamentarians who looked at this issue in detail. The Defamation Act is the product of significant scrutiny by parliament and perhaps a blueprint of how legislation should be arrived at in future. I don’t wish to bore – but it’s important to list this process for the benefit of libel-sceptics.
Our arguments and the arguments of our opponents were tested through the Report of the Libel Working Group established by the then Secretary of State for Justice Jack Straw MP (straight after the publication of theFree Speech Is Not For Sale report). This was followed by the House of Common’s Culture, Media and Sport Select Committee report intoPress Standards, Privacy and Libel that recommended action to reform the law. After the general election in July 2010, Lord Lester of Herne Hill tabled his private member’s bill which was adopted by the government to become the draft Defamation Bill. The Bill underwent a significant period of consultation. The government then tabled its own Defamation Bill that underwent full pre-legislative scrutiny by a joint committee of the House of Commons and the House of Lords. The final Defamation Act was subjected not just to pre-legislative scrutiny but extensive debate in the House of Commons and the House of Lords.
There should be no uncertainty as to the will of Parliament. If the judiciary interpret the Defamation Act in line with the clear consensus of the parliamentarians who shaped it, then the Act will reduce uncertainty. It is also the case that many of the clauses do not represent a significant break from the latest common law position in particular clause 1 on Serious harm and clause 4 on Publication on matters of public interest. That isn’t to say that “little will change” as argued by Dominic Ponsford of the Press Gazette. The evolution of the public interest defence in recent years to better protect freedom of expression has been swift, no doubt quickened by public dismay over the failure of the Reynolds defence of responsible journalism to adequately protect scientists, NGOs and journalists. Clause 4 is a ‘reasonable publication’ defence not a ‘responsible publication’ defence reflecting the latest common law as outlined by Lord Brown in Flood v Times. Gone is the Reynolds checklist for good. The reasonable decision of a blogger or NGO to publish will be different from that of a newspaper editor. If judges avoid legal uncertainty through lengthy arguments over how reasonable an editorial judgement was, the defence may have very positive impact on freedom of expression.
The Act also contains much that is new. Privilege has been significantly extended to cover peer-reviewed statements in scientific or academic journals and for reports of the proceedings of conferences of iNGOs, international organisations, public companies and scientific and academic conferences (to name a few). Libel tourism will be restricted by clause 9 with claimants needing to prove that “England and Wales is clearly the most appropriate place” to bring the hearing. The Honest opinion defence (clause 3) is a serious step forward and where I think the Act is at its best. It gives far better protection for honestly held, non-malicious, opinions. The author must prove they did hold that opinion at the time of publication and that an “honest person” could have held the opinion on the basis of “any fact” that existed at the time of publication, or anything asserted to be a fact in a privileged statement published before the statement.
A last minute amendment to the Defamation Act in the Lords pushed by Labour and Liberal Democrat Peers also made it harder for corporations to sue for libel (clause 1) with for-profit bodies needing to provide it is “likely” or has caused “serious financial loss”.
Finally, the law has been brought into the Internet age. Clause 5 (Operators of websites) is useful in setting out a process in statute for internet intermediaries to use when assessing claims but the use of the term ‘defamatory’ rather than ‘unlawful’ in subclause 6 (b) places the clause in contradiction to the EU E-Commerce Directive which remains of concern to the campaign. Clause 8, the Single publication rule, removes the multiple publication rule known as the ‘Duke of Brunswick Rule’, which predated the invention of the light bulb let alone the internet (I shall never tire of reiterating this point). Now a one-year time limit for making a claim begins when an article is originally published.
The Libel Reform Campaign may have welcomed the Defamation Act but we have not done so without qualification. We believe the Act could and should still be strengthened with most robust protection for individuals being sued by corporations or other non-natural persons, increased incentives for mediation, a stronger public interest defence and better protections for internet intermediaries.
Of particular urgency is the situation in Northern Ireland where libel sceptics have won the day with the Northern Ireland Executive blocking the application of the new Defamation Act to the province. The Department for Finance and Personnel refuses to comment on the basis of “confidentiality” as to why it had not been able to secure the “necessary consents” for the Defamation Bill within the required timescale. The Libel Reform Campaign hopes to help the Northern Ireland Law Commission with their forthcoming consultation on the libel law and will be campaigning to ensure the Executive revisits this issue to create a law that can be a progressive blueprint for other common law jurisdictions.
Mike Harris is a free expression consultant to the Libel Reform Campaign and English PEN. He tweets here @mjrharris
The Act gives absolutely no indication of what the ambit of the court’s enquiry into the serious harm threshold might be.