Their campaign has received strong support and many believe that the battle has been won now that the Defamation Act 2013 is in force. Shailesh Vara, Justice Minister, heralded the 2013 Act by stating that:
“As a result of these new laws, anyone expressing views and engaging in public debate can do so in the knowledge that the law offers them stronger protection against unjust and unfair threats of legal action… the end of a long and hard-fought battle to ensure a fair balance is struck between the right to freedom of expression and people’s ability to protect their reputation.”
The new law is the end result of a complex legislative process and it does create some real change. Companies will find it more difficult to sue for defamation since they will have to show that they have suffered, or are likely to suffer, substantial financial loss as a result of the publication in question.
The new ‘single publication rule’ has been largely praised as a sensible limitation on claims. Website operators have increased protection in relation to user-generated content, as long as they comply with takedown and notification procedures.
However, a careful examination of the Act’s provisions and comparison to the previous law shows that, in most cases, the protection against threats of legal action is not stronger under the new law, the balance between freedom of expression and the right to reputation was already careful and fair, and that many changes which the Act appears to create are, at best, cosmetic.
Campaigners had missed the fact that judges had spent more than a decade refining the relevant law, making it more difficult for weak claims to go to court, ensuring compliance with the human rights of the public and the media as well as those whose reputations might require protection, and creating new defences to support responsible journalism.
The cosmetic changes appear to be based on out-of-date assumptions and include the removal of the presumption of jury trial; in reality jury trials for defamation have long been very rare, with only single figures per year. Again, we are told that ‘libel tourism’ will be dramatically reduced; the true figures are so low that any reduction would be statistically insignificant.
Further, the ‘new’ rule that a claimant may only sue for defamation if they can show that they have suffered, or are likely to suffer, serious harm from the publication looks remarkably similar to the rule invented by judges in the case of Jameel v Dow Jones in 2005 – that a court will throw out any defamation claim where the claimant has not suffered a ‘real and substantial tort’.
Some changes are a complicated dance whereby an existing defence is abolished, then replaced by an almost identical ‘new’ defence with a different name, such as justification being renamed as ‘truth’ and reportage now having no individual name at all.
This process has cost time and money, and in some cases the changes in the wording of defences such as public interest appear to have added further uncertainty to the law, which may prove profitable to lawyers and cause self-censorship in the media. We have been staring at media law through such a small frame that we have missed important elements of the big picture.
Firstly, the largest problem with defamation law was the costs for claimants and defendants, and the 2013 Act did nothing to resolve that issue.
Secondly, partial codification of a complex area of law is a missed opportunity; if there is merit in writing down some of the judge-made rules, then why not the rest? The Act does not even define the basic concepts in the relevant law, leaving a great deal to judges.
Thirdly, the threats to responsible journalism and to the public right to know are more apparent in other fields of media law, such as the lack of a public interest defence to prosecutions under the Official Secrets Act and the lack of access to information about many existing restrictions on reporting criminal trials.
A focused campaign to create a single, coherent defence of public interest publication to protect responsible journalism across the breadth of media law would have been a better use of resources, with far more potential for practical impact.
Claire de Than is a senior lecturer and LLB programme director at City University London.
This piece was originally published on The Charta, and is reproduced with permission and thanks.
The Charta is a slow news website which has a a two weeks’ liveline before publishing a story. It can be followed on @thecharta.