I say this from no particular pro-claimant or pro-defendant perspective. Indeed, in my practice, as regards proceedings in defamation, I have acted for claimants and defendants in roughly equal proportion. The difficulty with the Act is that it creates confusion and uncertainty and potentially produces results which I think are absurd.
Recently, after expressing (perhaps in somewhat incautious terms) concerns with the Act at a public event, I was challenged by Lord Lester, the progenitor of the Act, to explain these concerns and set out alternative wording. This I have done in a detailed note which I have provided to Lord Lester. I here reiterate the substance of that note for the readers of INFORRM.
In this post, I will set out some general concerns. In the future posts I will address specifically:
- section 1 – the new serious harm test
- sections 2 and 3 – the truth and honest comment defences
- section 4 – the new public interest defence
- sections 5 and 10 – the intermediary defences
In each case, I have as requested by Lord Lester provided alternative wording.
General concerns
There are two general concerns which arise in respect of the Act. Firstly, the Act puts on a statutory footing a number of matters which have been reasonably well established in common law. Secondly, it is difficult to understand the varying approach the Act takes to substantive as opposed to jurisdictional law.
I consider these concerns in more detail below. However, before I do so, it is worth noting that the most significant single issue arising in respect of defamation actions is not any question of substantive law but the prohibitive costs of those proceedings. In abolishing the presumption in favour of jury trials, the Act takes an important step to seek to mitigate these costs. However, otherwise it is not clear how the Act will help to bring down costs. In particular, the uncertainty and complexity to which it gives rise – as explained further in this posting and future postings – are likely merely to increase costs.
Statutory footing
The Act puts on a statutory footing a number of matters which have been reasonably well established in common law. These include a threshold of seriousness before a defamation claim can be brought and the defences of truth, honest opinion and public interest (where the common law defences are all abolished). It might also be said that the move away from jury trials puts on a statutory basis the presumptive practice which had established in recent years in the courts, but the jurisprudential basis for this practice was perhaps more uncertain.
The benefit of putting these matters on a statutory footing is unclear. It cannot seriously be argued that by doing so this brings greater clarity. No person could realistically seek to bring a libel claim based solely on knowledge of these statutory provisions; to understand these matters properly still requires familiarity with the case law.
Equally, these provisions do not seem to reform significantly the existing regime. They appear in the main part simply to reiterate the generally understood position under existing case law. To the extent that any reform of these aspects of defamation law was desirable, this could have been achieved without supplanting the common law position wholesale.
There are two problems with replacing the common law position with a statutory scheme.
Firstly, it creates uncertainty, since it is not clear to what extent the detailed principles developed under the old law still apply. At the very least, with a new statutory code there will be an opportunity for revisiting matters which, as it has been well established under common law, often arise (at substantial cost to litigants).
Secondly, it freezes the law in the form of the statute. As set out in future postings, there are a number of complex issues regarding the law in these areas. As with any developing area of common law, these could in time have been addressed by the judges and the law been sensibly progressed (as has happened to the great benefit of the law of defamation over recent decades). The statutory definitions of several of the key defences now mean that there is much less flexibility.
Finally, it is regrettable that the opportunity to address well recognised anomalies within the existing law was not taken. I address these in future postings.
Substantive / jurisdictional law
In defamation, the distinction between substantive law and questions of jurisdiction can be very important. This is because the publication of defamatory material often spills over territorial boundaries. The question of which disputes can be heard in the courts of the UK is quite distinct from what is unlawful under English law. An English court may, for example, entertain an action in respect of publication overseas (subject to the substantive law of the country of publication). Alternatively, there may be a dispute in a foreign court over publication in the UK, which applies English governing law.
The logic behind the approach adopted in the Act to addressing issues by substantive or alternatively jurisdictional measures is unclear. In particular, the serious harm test in section 1 is couched as a substantive law provision. This appears to make more sense as a matter of jurisdiction (or procedure). Equally, the new intermediary defence at section 10 is couched as a jurisdictional measure (“A court does not have jurisdiction to hear…”). This appears to make more sense as a matter of substantive law, consistent with the other intermediary defences.
Dan Tench is a partner in the Litigation Department at Olswang LLP