No-one, starting from scratch, would devise defamation laws of the kind with which England and Wales, and the rest of the common law world, have been saddled. If they could be represented pictorially, they might resemble Frankenstein’s monster: countless complications and piecemeal reforms riveted to the rusting hulk of a centuries’ old cause of action.
Their central shortcoming is a failure to grapple squarely with the question that lurks, mostly in the background, in every defamation action: having regard to the nature and substance of the defendant’s attack on the claimant’s reputation, is it justifiable to interfere with the defendant’s right to freedom of expression? When that question comes to the fore in England and Wales, it does so not as the focus of the cause of action, but upon the application of an ultimate balancing test, or cross-check, on the compatibility of domestic principles with international obligations. The significance of that exercise ought not, however, to be understated: in places where the law has not evolved to accommodate human rights concerns, defamation actions are too often blithely decided as if matters of real consequence, in which the public as a whole has an interest, are not in play.
The Defamation Act 2013 contains the most wide-ranging reforms that have ever been attempted to the law of defamation of England and Wales. Its passage is, by any measure, a major achievement for which its promoters deserve admiration and thanks. Many of the statute’s recalibrations of the law are to be welcomed. Generally speaking, although not uniformly, the reforms tilt the balance towards greater protection for freedom of expression. The new Act may place in jeopardy London’s crown as the libel capital of the world.
While in a number of respects the reforms are radical, as a package, they cannot be so described. The 2013 Act does not redefine the elements of the cause of action or reduce the panoply of available defences. It does little to simplify the complexity of the law. As with reforms past, it mostly bolts new principles onto the existing structure although, to labour the metaphor, some of the monster’s organs have been transplanted or received grafts.
The principal changes effected by the Act are straightforward enough to state. Defamation actions will no longer proceed unless the claimant has suffered, or is likely to suffer, serious reputational harm or, in the case of bodies that trade for profit, serious financial loss, as a result of the defendant’s publication. Courts, presumptively, no longer have jurisdiction to hear and determine defamation actions brought against secondary publishers of defamatory statements; or persons domiciled outside the United Kingdom, the European Union, Iceland, Norway, or Switzerland.
There are changes to the categories of slanders that are actionable without proof of special damage. The common law defences of justification and fair comment have been abolished and replaced with statutory defences of truth and honest opinion. The Reynolds defence – a significant liberalization of the common law responding, in part, to human rights jurisprudence and developments elsewhere – has been codified. Absolute and qualified privilege defences have been expanded, in important respects materially, and a new defence has been prescribed for operators of websites who have complied with regulations in cases involving allegedly defamatory statements that have been posted by others online. Clunky regulations in support of that defence have been promulgated. There are new remedies, enabling courts to order the publication of summaries of their judgments, and to stop the secondary distribution of statements that have been found to be unlawful. A single publication rule has been introduced to remove the spectre of ongoing liability for most statements that are indefinitely accessible from online archives and the like. The presumption in favour of trial by jury on the application of either party has been reversed.
There are, however, many contestable questions of construction and apparently unintended consequences that will take time to percolate. It is not clear, for example, whether section 10 of the 2013 Act, which removes the jurisdiction of courts to hear and determine most cases against secondary publishers, has affected the common law principles relating to liability for the foreseeable republication or repetition of defamatory statements. Section 10 may also have implications where Internet users link to, frame, or aggregate defamatory statements posted by others online.
The statutory defence of truth in section 2 of the 2013 Act may have liberalized the extent to which defendants may rely on post-publication evidence in order to demonstrate the substantial truth of some defamatory statements. Whether the new truth defence alters the principles that apply where a defendant seeks to justify an imputation that is different from, but bears a common sting with, the imputation selected for complaint by the claimant will need to be resolved. The defence of contextual truth in section 2(3) may be broader than the defence it replaces in section 5 of the Defamation Act 1952.
The defence of honest opinion in section 3 of the 2013 Act is, for the most part, considerably more liberal than the common law defence of fair comment it replaces and is a more significant reform than the codification of the Reynolds defence in section 4. Section 3 appears to be capable in some circumstances of protecting opinions that could have been held by an honest person on the basis of a misleading or distorted view of the underlying facts.It also seemingly enables a defendant to demonstrate that an honest person could have shared his or her opinion by reference to facts, and matters asserted as facts in privileged statements, that were not known to the defendant at the time of publication and upon which the opinion was not based. On the other hand, the section 3 defence may be less liberal than the defence of fair comment in cases where the defendant did not intend to express the opinion in fact conveyed by a statement.
There are other anomalies. Application of the section 3 defence of honest opinion, for instance, is capable, in some cases involving media publications, of leading to different outcomes, on the same facts, depending on whether the claimant elects to sue the journalist who penned the defamatory opinion, or just the media organization that employs the journalist. It also, oddly, is capable of protecting opinions that an honest person could have held on the basis of anything asserted to be a fact on various occasions of statutory privilege, but not on occasions that are privileged only at common law. The section 4 defence for publications on matters of public interest contains a prescription for cases of reportage that appears to have little or no work to do. Curiously, a defendant cannot rely on a conviction that is spent within the meaning of the Rehabilitation of Offenders Act 1974 in support of the section 4 defence, even though spent convictions can be relied on in support of defences of truth, honest opinion, and absolute and qualified privilege.
The new defence for operators of websites in section 5 of the 2013 Act appears necessarily to have displaced principles of vicarious liability to the benefit of operators in cases where statements posted by others have been moderated, but left moderators themselves exposed.
The beneficial defence in section 6 of the 2013 Act appears to be capable of protecting peer-reviewed statements in scientific or academic journals, even where they incidentally contain gratuitous defamatory attacks. On the other hand, however, the publication of an assessment of the academic merit of a peer-reviewed statement will apparently not be protected where, unbeknownst to the author or commercial publisher of the assessment, the underlying statement had been made with malice.
Two of the signature reforms in the 2013 Act—the increased threshold in section 1 for determining whether a statement is defamatory, and the presumptive removal by section 9 of jurisdiction in cases against defendants domiciled outside the European Union, Iceland, Norway, and Switzerland—may have more symbolic and practical, than legal, ramifications.
Inevitably, attempts to analyse reforms that are yet to be curially tested, some of the predictions made, will prove to be wrong or not find favour. One thing I have learned from combining practice, teaching, and textbook writing is that the imagination of the scholar in conjuring up abstract factual hypotheses and applying uncertain legal principles to them is no match for the ingenuity forged in the less rarefied atmosphere of the courtroom, where the vital interests of real litigants are at stake.
This is an edited version of the Preface to Dr Matt Collins’ new book, Collins on Defamation, published by Oxford University Press in March 2014