Defamation Act 2013: A summary and overview six years on, Part 2, Sections 4 to 14 – Brett Wilson LLP

30 01 2020

The Defamation Act 2013 (‘the Act’) came into force on 1 January 2014.  At the time, we published an article considering the individual provisions of the Act, and speculating about how the law of defamation had been changed.  In this follow-up article, we revisit the topic six years after the Act’s inception and look at what has happened in practice. Part 1 of this post looked at sections 1 to 3.

Section 4 – The defence of publication on a matter of public interest

Section 4 abolished the common law defence of ‘Reynolds qualified privilege/journalistic qualified privilege’ and replaced it with a new statutory defence of ‘publication on a matter of public interest’. As anticipated, and affirmed in Economou v de Freitas [2016] EWHC 1853 (QB) (see our blog here), the new section 4 defence is being interpreted broadly in line with the principles of the common law ‘Reynolds’ privilege (although there remains some debate between practitioners as to the level of  importance to be attributed to each of the old ‘Reynolds criteria’ – Lord Nicholls’ checklist for good practice – in view of the new formulation of the defence).   In paragraph 139 of Economou, Warby J listed a number of principles regarding the operation of the section 4 defence.  Significantly, it was argued in Economou that the Defendant’s conduct fell ‘far short’ of the Reynolds criteria, but the section 4 defence nevertheless succeeded – Warby J considered that it would be wrong to have expected the Defendant to meet the Reynolds criteria, as he was not a journalist.  Warby J’s approach was endorsed by the Court of Appeal (Economou v De Freitas [2018] EWCA Civ 2591 – see our blog here).

Warby J noted in Barron MP & Anor v Vines (Rev 1) [2015] EWHC 1161 (QB) (see our blog here) that the section 4 defence is also potentially available to protect expressions of opinion (such as on political matters) even where the section 3 defence of honest opinion is not available, although it is hard to envisage circumstances where that would happen.

In Doyle v Smith [2018] EWHC 2935 (QB) (see our blog here) the defendant blogger’s public interest defence failed because he did not adequately plead and prove that he had believed it was in the public interest to publish the statement complained of.  Interestingly, Warby J noted in that case that there will not normally be any public interest in the internal workings of a members’ club.

The Court of Appeal gave guidance on the operation of the section 4 defence in Serafin v Malkiewicz & Ors [2019] EWCA Civ 852.  In overturning the decision at first instance, it noted that consideration must be given to a claimant’s Article 8 ECHR right to reputation and the damage to reputation that would be caused by publication. In addition, when considering whether or not an article is in the public interest the court should consider “not merely the bare subject-matter, but also the context, timing, tone, seriousness and all other relevant factors”.  The Defendant has obtained permission to appeal to the Supreme Court and the appeal will be heard on 17 and 18 March 2020.

Claimant lawyers dealing with pre-publication matters will doubtless rely on certain observations made by Nickin J about the Second Defendant’s conduct in the case of Turley v UNITE the Union & Anor [2019] EWHC 3547.  Nicklin J criticised, amongst other things, the Second Defendant’s failure to set out a full, accurate and fair summary of the allegations that he intended to publish and the unreasonable and self-imposed publication deadline for a response.

Section 5 – A defence for operators of websites

Section 5, in tangent with the Defamation (Operators of Websites) Regulations 2013, can provide website operators with complete immunity where they follow a procedure for responding to defamation complaints concerning third party content.  This may include contacting the third party to request that their details be passed to the claimant.

We are not aware of any reported case in which a section 5 has been run at a hearing.  Our own experience suggests that take up of the section 5 procedure has been very low.  The procedure is complicated and onerous. It is probably unattractive to website operators who will often have no interest in the matter and/or be able rely on other substantive defences.

Section 6 – Peer-reviewed statements in scientific or academic journals.

Section 6 provides a niche category of the qualified privilege defence to those publishing in a scientific or academic journal, provided that the statement related to a scientific or academic matter (section 6(2)) which had been subjected to an independent review as to its scientific/academic merit, either by the editor of the journal or by one or more other experts in the matter concerned (section 6(3)).  Where the privilege is found, the publication of a fair and accurate copy, extract from or summary of the statement is also privileged.  The defence is defeated if the claimant can show the statement has been made with malice (section 6(6)).

This provision is aimed at preventing the stifling of legitimate scientific debate, the inspiration for which was the libel claim in British Chiropractic Association v Singh [2010] EWCA Civ 35, in which a scientist/science writer was sued for accusing the claimant of promoting bogus treatments.  Whilst BCA was more concerned with fair comment/honest opinion, the case was one of the catalysts for libel reform.  So far as we are aware, section 6 has not been argued in a reported case yet.  Its presence on the statute books has likely deterred unattractive libel threats.

Section 7 – Court and other reports protected by privilege

Section 7(1) internationalised the scope of section 14 of the Defamation Act 1996 so that fair and accurate reporting of legal proceedings in any court established under the law of any country or territory (and also any international court or tribunal established by the Security Council of United Nations or by an international agreement), is covered by absolute privilege.  In Shakil-Ur-Rahman v ARY Network Ltd [2016] EWHC 3110 (QB) the defendant sought to rely on the section 14 defence in relation to Pakistani court proceedings, but the defence failed because the allegation in question had not formed a part of those proceedings and the offending broadcast had not even referred to them.

Section 7 also extended the scope of section 15 of the Defamation Act 1996 to cover reports of scientific and academic conferences with qualified privilege. It also internationalised the qualified privilege protection previously afforded to meetings of UK listed public companies to apply to listed companies worldwide, and extended qualified privilege to cover summaries of (as well as copies of/extracts from) various documents circulated to members of listed companies by the board, directors, auditors or other members.

Section 8 – The single publication rule

The single publication rule provides that the limitation period of 12 months runs from the date of first publication to the public, notwithstanding any subsequent publication of a statement which is substantially the same. It, effectively, ended the indefinite liability for online publications, which are ‘published’ each time they are accessed (previously ‘resetting’ the limitation period each time).

Save for some litigation concerning publication that straddled the inception of the Act (Richardson v Facebook, Google (UK) Limited [2015] EWHC 3154 (QB) and Deman v Associated Newspapers Ltd [2016] EWHC 2819 (QB)), the courts do not appear to have been troubled with any section 8 disputes.  The most obvious scenario for litigation would be dispute over whether a previous publication was substantially the same and had set the limitation clock running.

Interestingly, the scenario we raised in our article in 2014 has not yet come before the court: where a website containing a defamatory statement did not come to significant prominence (nor perhaps the subject’s attention) until more than 12 months after it was first placed on the internet, might it be argued that the publication changed in manner upon the change in the website’s popularity?  It is not unheard of for older webpages to ‘creep up’ search engine results over time.  Section 5(5) states that the court may have regard to (a) the level of prominence that a statement is given and (b) the extent of the subsequent publication (amongst other matters) when considering whether the publication is materially different.  More generally, there is a friction between section 1 of the Act and section 8; a claimant is required to get on and sue, but they must also show that the statement has caused or is likely to cause serious harm.  In many instances they will not know what the ultimate effect of a publication will be, much less be able to foresee to what extent events will enable them to evidence it.  This issue was touched upon in an abstract sense by Lord Sumption in the Supreme Court’s decision in Lachaux (at paragraph 18) (though not, in our view, resolved).

Section 9 – Action against persons not domiciled in the UK or an EU/Lugano Convention State

Section 9 provides that the court will not have jurisdiction to hear a defamation claim where the prospective defendant is resident outside of the UK, European Union, or the Lugano Convention states (Norway, Switzerland and Denmark), unless it can be satisfied that England and Wales is clearly the most appropriate place to bring the action.  Parliament enacted this provision to address (somewhat exaggerated) concerns about ‘libel tourism’: foreign litigants using the courts of England and Wales to recover damages for libel from foreign publishers where the libel was more widely published in other jurisdictions.  Section 9 in fact goes beyond that because it applies equally to British citizens and UK residents (complaining about publication from abroad) as it does those outside the UK.

The first case in which this provision came to be considered was Ahuja v Politika Novine I Magazini D.O.O & Ors [2015] EWHC 3380 (QB). Sir Michael Tugendhat held that the court had to consider all jurisdictions in which the defamatory statement had been published in order to determine which was the most appropriate forum.  The Claimant’s case was that he had suffered harm in multiple jurisdictions.  However, he had provided evidence only in relation to harm suffered in England.  The court could not, therefore, be satisfied that England and Wales was the most appropriate place in which to bring an action.  Similar strict application of section 9 were applied by Nicklin J in Huda v Wells & Ors [2017] EWHC 2553 (QB) and Wright v Ver [2019] EWHC 2094 (QB) (see our blog here).  Later this year, the Court of Appeal will consider section 9 for the first time in the appeal of the latter case.

In Al Sadik (aka Riad Tawfiq Mahmood Al Sadek Aka Riad Tawfik Sadik) v Sadik [2019] EWHC 2717 (QB), Knowles J confirmed that the question of jurisdiction under section 9 is a freestanding one imposed on the courts by statute and cannot be agreed or waived by a party not following the CPR 11 procedure (i.e. promptly making a jurisdiction challenge upon service of proceedings).

Finally, it should be noted that following the UK’s expected departure from the European Union, section 9 will be amended to apply in respect of all defendants who are not domiciled in the UK.

Section 10 – Secondary publishers

Section 10 states the court does not have jurisdiction to hear a defamation claim against a person who was not the “author, editor or publisher” of the statement complained of, unless it is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher.
This provision would, for instance, normally prevent a claimant suing Facebook in respect of user postings on its platform (assuming the poster were identifiable).  The provision has undoubtedly saved Internet intermediaries considerable grief, although the protection does not apply to other causes of action where they remain vulnerable to suit (most notably data protection and privacy claims).  Of course, the role of intermediaries is not always black and white. In Brett Wilson LLP it was held that the operator of a website hosting reviews apparently submitted by third parties was liable as an editor.

Section 11 – Jury trials

Section 11 reversed the presumption that defamation cases be tried by jury.  Yeo v Times Newspapers [2014] EWHC 2853 (QB) (see our blog here) was the first case after the Act came into force in which a party applied for a jury trial.  Warby J dismissed The Times’ application and remarked that the greater the public interest in the issues in the case, the greater the need for trial without a jury as this would provide for a reasoned judgment.  There has been no jury trial since the inception of the Act and, indeed, Yeo aside, we are unaware of the Court having considered any further applications.

Section 12 – Power to order defendant to publish a summary of judgment

Section 12 provides that where the court gives judgment for a claimant, it may order the defendant to publish a summary of the judgment and, if necessary, to decide upon wording and give directions as to the time, manner, form or place of publication.

So far, we are only aware of one order made under this section, namely by Sir David Eady against the unsuccessful defendants in Rahman.  He explained that whilst a large award of damages will usually be sufficient to vindicate the claimant’s reputation, that only bites where the readers or viewers of the original libel come to know about it.  In that case, he determined that the viewers of the Defendant’s news programmes needed to be expressly informed.

In Monir v Wood [2018] EWHC 3525 (QB) (see our blog here) Nicklin J noted that exercising the power to require a defendant to publish a summary of the judgment is to interfere with its Article 10 right and, as such, the interference must be justified.  In that case there was no realistic prospect of the summary coming to the attention of those to whom the original libel was published and, in any event, the Claimant was expected to secure vindication of his reputation through the publicity the judgment was likely to receive.  This is consistent with what seems to be a general reticence of the courts to make section 12 orders unless strictly necessary.  Nicklin J has expressed a preliminary view that one may be appropriate in Turley.

Section 13 – Power to make orders against third parties

Section 13 provides that where the court gives judgment for a claimant it may order the operator of a website to remove the statement, or any person who was not the author, editor, or publisher of the statement to stop distributing, selling or exhibiting it.  We are not aware of the court making such an order in a reported case.  This is perhaps not surprising.  Section 13 is effectively a sibling provision of section 10 and such an order might be useful or necessary where a defendant does not engage with proceedings or comply with an injunction requiring them to remove material.  In practice, Google and many of the leading social media platforms have voluntary procedures by which they will tend to remove material which is subject of a court order (even if the order does not touch upon them directly).

Section 14 – Special damages

Section 14 repealed section 14(1) of the Slander of Women Act 1891 and also provides that a statement implying that a person has a contagious or infectious disease does not give rise to a cause of action in slander unless the publication causes that person special damage.

Conclusion

The impetus behind the Act (as per the words of Lord Sumption quoted at the start of this article) was a recalibration of the balance between freedom of expression and the protection of reputation.  The introduction of the serious harm threshold, which the Supreme Court has now confirmed not only raises the level of seriousness (from that required by the common law authorities of Jameel and Thornton) but requires it to be determined by actual facts about the statement’s impact – has certainly created more of a level playing field.  Free speech campaigners and the media had wanted to see the UK adopt an approach more akin the US system, where there is no presumption of falsity and public figures bringing claims must prove that a statement has been made maliciously.  This did not happen.  Compared to the US, UK defamation law is still relatively claimant-friendly.  Nevertheless, it is now far riskier for claimants to pursue claims out of principle or in order to ‘punish’ the errant publisher (either because they can, or because lawyers are willing to act on a no win, no fee basis), where, in their heart of hearts, they know that the publication has caused them little or no real-world consequences.

It has taken the best part of six years to reach clarity about the serious harm test.  Even now, whilst there may be academic consensus about the operation of section 1, it remains very difficult to predict the outcome of section 1 disputes in various factual scenarios.  The Supreme Court’s ruling means that a huge amount will be left to the range of rational judicial decision-making.  In this respect, our 2014 predictions that the courts may find themselves tied up with interpretation of the statutory wording, and that litigants and lawyers may be entering a period of uncertainty has proved entirely correct.

As noted above, many of the provisions have either not been tested in court at all, or have arisen on relatively few occasions, such that some consequences and battlegrounds may bet yet to emerge.  As things stand, however, aside from the ‘serious harm’ threshold, it might be said that the Act has proved relatively uncontroversial and has not substantially changed the law of defamation.

As we mentioned in our original article, it is somewhat unfortunate – given the breadth of topics that the Act did seek to address – that it stopped short of fully consolidating and codifying defamation law.  To do so may have led to more uncertainty in the short-term but, ultimately, would have made defamation law more accessible; instead non-specialists face the daunting task of having to consider at least three statues (one of which is now 68 years old) and a plethora of common law.

This article was prepared by members of Brett Wilson LLP’s media law department with additional input from Szeréna Nemes.

This post originally appeared on the Brett Wilson Media Law Blog and is reproduced with permission and thanks


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30 01 2020
‘Defamation Act 2013: A summary and overview six years on, Part 2, Sections 4 to 14’ | Private Law Theory - Obligations, property, legal theory

[…] “The Defamation Act 2013 (‘the Act’) came into force on 1 January 2014. At the time, we published an article considering the individual provisions of the Act, and speculating about how the law of defamation had been changed. In this follow-up article, we revisit the topic six years after the Act’s inception and look at what has happened in practice. Part 1 of this post looked at sections 1 to 3 …” (more) […]

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