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The New Defamation Act 2013: What Difference Will It Really Make?

By David Hooper, Brid Jordan, Kim Waite, Oliver Murphy*

The Defamation Act 2013[1] received Royal Assent on 25 April 2013. The big question for all practitioners and publishers is how much difference will it really make?

The key changes, virtually all of which favour defendants, are:

  • The introduction of the test of serious harm – something which is likely to prevent trivial libel claims and which will underpin all defences to libel complaints.  This is a stronger test than the requirement of “substantial harm” in the original Bill.
  • Companies can only sue if they prove serious financial loss – a hurdle they will find difficult to surmount.
  • A defence of public interest is introduced, which provides that the statement must be a matter of public interest and the defendant must have reasonably believed the statement was in the public interest. This is wider rather than the Reynolds defence which is abolished, but in deciding whether the defendant’s belief was reasonable, the court is likely to consider a question of whether the journalism was responsibly conducted. The law is simplified and made more flexible.
  • The defences of truth and honest opinion replace the defences of justification and fair comment. They are codified and simplified, but the burden of proof remains upon the defendant and the rule against repetition of a libel remains.
  • There is a new defence for operators of websites under Section 5 of the Act where the operator can show that he did not publish the statement on the website.  The Defamation (Operators of Websites) Regulations 2013[2] have recently been published in draft and have been sent to interested parties for comment. Following this consultation period the regulations will be made by Statutory Instrument to define the steps the complainant and operator must take where the poster of the liable cannot be identified. It is likely that these Regulations will be materially similar to those currently published in draft. The intention is that the Regulations will come into force at the same time as the substantive defence in Section 5, a date that still remains to be fixed.
  • Qualified privilege is extended to peer-reviewed statements in scientific or academic journals which should prevent cases such as that brought by the British Chiropractic Association v Simon Singh.
  • Various categories of statutory privilege are extended worldwide rather than being limited to EU bodies or courts or international courts or organizations to which the UK belongs.
  • A single publication rule is introduced providing for a proper one year limitation period provided the subsequent publication is not materially different from the original.
  • Abolition of libel tourism. Cases can only be brought against a non-EU or Lugano Convention country citizen if it can be shown that England and Wales is clearly the most appropriate jurisdiction for the libel action to be heard in.
  • Trial by jury for libel actions is affectively abolished which will shorten and reduce the cost of libel actions.
  • The court now has power to order a summary of its judgement in a defamation claim to be published and where judgment has been given for a claimant to order the operator of a website where the defamatory statement is published to take it down or for a person who was not the author of the statement to cease distributing the defamatory statement.
  • These changes do not apply to Northern Ireland so there may be a growth of libel tourism cases in Northern Ireland – a prospect viewed with no small degree of equanimity by Paul Tweed. The changes have only limited application in Scotland where the law of defamation is different from that in England and Wales.

Background

The draft Defamation Bill was published by the Ministry of Justice in March 2011.  It was the subject of extensive scrutiny, discussion and debate in the form of a period of public consultation and detailed hearings by a Parliamentary Committee. As a consequence it was significantly amended whilst passing through Parliament.

The Act was nearly derailed by the amendment introduced by Lord Puttnam in the House of Lords which sought to graft onto the Defamation Act the changes recommended by Lord Justice Leveson; recommendations which for the most part had limited connection with the changes to the defamation law. They were subsequently detached from the Defamation Bill and the relevant legislation relating to Leveson and the Royal Charter was tacked onto the Crime and Courts and Enterprise and Regulatory Reform Acts.

No commencement date has been fixed for the Act.

Serious Harm

Under Section 1 of the Defamation Act 2013 a statement is not be treated as defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.  The existing definition of what is defamatory is not changed, but the bar has been raised before a libel action can be brought.  This bar itself had been raised during the course of the legislation passing through Parliament in that the published Bill had the lower threshold of “substantial harm.”  In effect the requirement of serious harm builds upon the requirement of a “threshold of seriousness” suggested in Thornton v Telegraph Media Group Ltd [2010] EWHC 1414, and for the requirement of “a real and substantial tort” as indicated in Jameel v Dow Jones & Co [2005] EWCA 75.

Increasingly courts have thrown out trivial libel cases or those that were felt to be an abuse of the processes of the court.  For example, a complaint about an article headlined “The Return of The Man Eater” was struck out on the basis that it did not cross the threshold of seriousness, i.e. the words complained of were not capable of being defamatory. Dell’olio v Associated Newspapers, [2011] EWHC 3272.

The requirement of serious harm permeates all aspects of the new law of defamation and is likely to lead to an increasing number of claims being struck out or simply not brought.  Whenever the court will be exercising its discretion as to whether to allow a case to proceed, it will be asking itself whether the publication has caused or is likely to cause serious harm.  Equally when the court is considering whether or not to permit service of proceedings outside the jurisdiction which in the first instance and at the ex parte stage has normally not proved much of an obstacle for claimants, the court will now be considering the question of serious harm.  Equally claims may be held not to reach the serious harm threshold where publication is limited in extent, where there is evidence of general bad reputation or if the claimant can only establish an innuendo meaning which would be understood only by a limited group of people.

The new test may also be of considerable significance in relation to claims of defamation published on the Internet where the courts have already taken the view where appropriate that publication, for example in chat rooms, does not have the gravity of a libel in written form.  In Tamiz v Google, [2012] E.M.L.R. 24 and [2013] E.M.L.R. 14, a number of the allegations which on the face of it were defamatory were considered by the court to be insufficiently serious to merit a legal action. The likelihood is that defendants will increasingly argue that in certain instances not too much weight should be attached to what appears on the Internet and that the threshold of serious harm is not triggered.

In other cases the contrary argument will be as to the permanence and spread of the Internet.  Over the years many trivial libel actions have been successfully brought and the requirement of serious harm is likely to change that.  Additionally the requirement of serious harm will assist the process of pre-publication advice in that the likelihood of a libel claim being brought in relation to a very minor or trivial matter will have been substantially reduced.

Companies

Under Section 1(2) companies which trade for profit will have to establish that the defamatory statement has caused or is likely to cause the company serious financial loss in order to bring successful proceedings.  Important to bear in mind is that actions can still be brought by officers of the company if they can establish that the statement reflects upon them personally.  However, this is a very significant change which will assist potential defendants in defamation actions.  It changes the law in that the House of Lords in the Jameel case declined to extend the principles of Derbyshire County Council v Times Newspapers Limited, [1993] A C 534, to companies.

This was a provision introduced into the Bill in the House of Lords in February 2013.  The House of Lords amendment would also have extended the Derbyshire County Council ruling to companies which were performing a public function so that, for example, a company performing the governmental function of running a prison would not have been able to sue for libel.  The House of Commons rejected this amendment on 16 April 2013 but the requirement of proving serious financial loss was ultimately reinstated in the Act.

The threat prior to this change of being sued by a company was a very significant one.  Not only did companies tend to have deep pockets and the cost of bringing a libel action was likely to be set off against the company’s profits for tax purposes and the Value Added Tax could be reclaimed, neither of which advantage tended to be available to non-corporate defendants.  In practice, proving such financial loss is likely to be very difficult for companies.  The mere fact that the company’s share price may have fallen is insufficient – Collins Stewart Ltd & Anor v The Financial Times, [2004] EWHC 2337.  There the company brought a special damages claim quantified by reference to the fall in the company’s share price.  The special damages claim was struck out with the court observing “the reasons why a share is traded at a particular price… are unknown, or, at best, matters of conjecture.”

Truth

In effect Section 2, the defence of truth, codifies the existing law of justification.  The defence of truth will apply where the defendant can show that the imputation conveyed by the statement complained of is substantially true.  The repetition rule survives, as does the requirement that the burden of proof remains upon the defendant.

The issues are likely to be what the words mean and whether that meaning can be proved to be substantially true.  If the defendant can prove that part but not all of what he said was substantially true the issue would then arise whether that part of the defamatory statement has or would be likely to cause serious harm (s 2(3)).  Section 5 of the Defamation Act 1952 which had previously dealt with the situation where part only of the defamatory statement could be shown to be true is now otiose.

Honest Opinion

Section 3 repeals the common law defence of fair comment and in effect builds upon the ruling of the Supreme Court in Joseph v Spiller [2010] UKSC 53, which had sought to rename the defence of fair comment as honest comment.  The law has not significantly changed but some of its complexity is cut away.

The conditions for the defence are set out in Section 3. A statement must be one of opinion rather than fact, the basis of the opinion must be indicated in general or specific terms and the opinion must be one which an honest person could have held on the basis of any fact which existed at the time the statement complained of was published or was derived from something asserted to be a fact in a privileged statement published before the alleged defamatory statement.

The defence is defeated if the claimant shows that the defendant did not hold the opinion – something which is likely to be difficult to prove.  The law of malice is not expressly abolished but would appear to fall away.

It remains to be seen whether the complexities of the defence of fair comment will in fact fall away, but the indications are that the defence will be simplified in accordance with the ruling in Joseph v Spiller.  Once the defence is established it is a very significant defence as it extends to any honest expression of opinion however bigoted.  Equally if a defendant formed an opinion on facts which turned out to be erroneous or not to exist at the time of making the statement, he could still have a defence if other facts were later discovered by him which existed at the relevant time on the basis of which an honest person could have held that opinion.  The defendant cannot, however, rely on facts which came into existence subsequent to the making of the comment.  Such facts might, however, show that any harm suffered arising from the comments was not serious.

Under s 3(6) where the defendant is not the author of the statement, for example, where an action is brought against a newspaper editor in respect of a comment piece rather than against the person who wrote it the defence would be defeated if the claimant could show that the defendant knew or ought to have known that the author did not in fact hold the opinion.  That too would be a heavy burden on the claimant to establish.

Publication on Matter of Public Interest

In place of the Reynolds defence, which is now abolished, the Act provides a public interest defence which applies whether the statement is a matter of fact or opinion.  In the Bill as originally published the Reynolds defence was effectively codified and, had it been enacted, the Nicholls criteria would have been part of the Act albeit that the ten factors were reduced to eight.

The public interest defence as now adopted is wider than the Reynolds defence and more flexible.  It also has the potential advantage of reducing the likelihood of preliminary issues as to how the material came to be published.

The ingredients of this defence are that the statement complained of was or formed part of a statement on a matter of public interest (which is not defined) and the defendant must have reasonably believed that publishing the statement was in the public interest.  In determining whether the defence is made out, the court is directed to have regard to all the circumstances of the case.  The court in having regard to all circumstances is likely to be looking to see if the journalism was conducted in a responsible manner and is likely to apply an approach which is not dissimilar  to that adopted in the Reynolds, Jameel and Flood [2012] UKSC 11 cases.

It is notable that public interest is not defined.  Under the defence of fair comment where the comment had to be on a matter of public interest, public interest was very widely defined.  The choice that seems to face the court is either taking a wide view and deferring in significant measure to editorial judgement as to what was in the public interest or taking the more restrictive view of the European Court of Human Rights that the article must be said to add to public debate.  It seems reasonably certain that the court would be inclined to the view that matters of celebrity gossip would not amount to public interest and would clearly differentiate from matters that simply happened to interest the public.  However, there are grounds to think that a reasonably wide view would be taken of what constitutes public interest.  There is both a subjective element in that the defendant must believe that the statement was in the public interest and an objective element, namely that the court must be satisfied that the statement was on a matter of public interest and that the defendant’s belief was reasonable.

In deciding whether the defendant’s belief was reasonable the court is likely to look at a number of the Reynolds’ factors.  The approach may well be that adopted by Lord Brown in Flood v Times Newspapers: “[c]ould whoever published the defamation, given what they knew (and did not know) and whatever they had done (and had not done) to guard so far as possible against the publication of untrue defamatory material, properly have considered the publication in question to be in the public interest?”

What is of some significance is that under Section 4(4) the court in determining whether it was reasonable for the defendant to believe that the statement complained of was in the public interest should make such allowance for editorial judgement as it considers appropriate.  One of the original criticisms of the Reynolds’ defence was that it was applied in too strict a fashion and almost involved putting a judge in the editor’s office.  Sub-section 4 appears to follow the observation in Flood: “While the Court must have the last word in setting the boundaries of what can properly be regarded as acceptable journalism, within those boundaries the judgement of a responsible journalist and an editor merits respect.”  This was in line with the approach of the European Court of Human Rights in cases such as Jersild v Denmark 19 EHRR 1.  “It was not for national Courts or the European Court of Human Rights to substitute their own views for those of the press as to what techniques of reporting should be adopted by journalists.  In essence, article 10 leaves journalists to decide what details it is necessary to reproduce to ensure credibility.”

Section 4(3) recognises the common law doctrine of reportage.  Reportage, as Lord Phillips noted in Flood, “is a special kind of responsible journalism but with distinctive features of its own.  In such cases there would be public interest which would justify the publication of facts which carried defamatory inferences without imposing on the journalist any obligation to attempt to verify the truth of those inferences.”

Operators of Websites

The aim of Section 5 is to deal with the changes in communications since the passing of the Defamation Act 1996 and to update the innocent dissemination regime of Section 1 of the Defamation Act 1996.

Section 5 creates a new defence for operators of websites for claims regarding statements posted on a website when the operator can show that he did not post the statement on the website.  The defence is defeated if the claimant shows that:

(a) it was not possible for him to identify the person who posted the statement;

(b) he gave the operator a notice of complaint in relation to the statement; and

(c) the operator failed to respond to the Notice of Complaint in accordance with any provision contained in the Regulations.

Under the proposed Regulations, a complainant would be required to provide to the website operator a Notice of Complaint which meets the formal requirements set out in Regulation 2. The complainant would be required to specify their name and e-mail address, set out the statement complained of and the meaning the complainant attributes to it and explain why it is defamatory and specify where it was posted. The complainant would further have to confirm that he or she does not have the information to enable him or her to bring proceedings against the poster of the alleged defamatory material and to indicate whether he or she consents to details of their identity being disclosed to the poster.

Upon receiving a Notice of Complaint, the website operator must, within 48 hours (excluding weekends and bank holiday), acknowledge receipt of the Notice of Complaint and also provide the Notice to the poster of the allegedly defamatory material, notifying them that the statement complained of will be removed unless, within 5 days, the poster responds providing certain information. If the poster responds saying that he objects to the material being removed he must at the same time provide his name and postal address and either give consent for this to be released to the complainant or accept that it may be released pursuant to a court order against the website operator. If no name and address is provided then the operator must remove the material after the time expires to retain the s.5 defence. If the poster does not respond at all the operator must remove the material after the time expires to retain the s.5 defence. Finally, if the website operator has no means of contacting the poster it must remove the material within 48 hours to retain the s.5 defence. The website operator must let the complainant know within 48 hours of the end of the relevant period, or relevant step, what steps have been taken. There are also proposed provisions for “repeat offenders” posting defamatory material which in effect reduces the time between the Notice of Complaint and material being removed.

The purpose of the Regulations is to provide an opportunity for a hitherto anonymous poster to identify himself or herself so that in effect the dispute would proceed as a matter between the complainant and the poster without the operator being involved (or allow the complainant to seek the identity of the poster from the website operator). Alternatively, the post would be taken down by an operator wishing to retain a s.5 defence.

A website operator does not have to take any of these steps unless it wishes to avail itself of the defence under s.5. This defence is in addition to existing defences that operators have. They could choose to defend themselves on the basis of s.1 of the Defamation Act 1996 or Regulation 19 of the E-Commerce Regulations 2002, or indeed a defence of truth, privilege and so forth. A Notice of Complaint may not be sufficient to meet the requirements of actual notice of unlawful material, as is required by Regulation 19 to put a party hosting material on notice and therefore make it liable if it fails to remove the material.

The Regulations also propose a definition of “the operator,” although no definition of website. An operator is said to be “the operator of a website on which the statement complained of in the notice of complaint is posted.” This is reasonably narrow and is unlikely to extend to ISPs or search engines. The term website however is likely to be interpreted broadly to include mobile platforms and social media applications.

However, this is a welcome step for complainants and to an extent, operators (although the short time periods specified in the Regulations are likely to meet with resistance). Complainants may find a more streamlined process to complain and ultimately have information removed from websites where they assert it is defamatory and the original poster is not identifiable. The operators need not be troubled by litigation merely due to their deep pockets where the original poster of the statement can be identified by the complainant or agrees to provide their identity to the complainant or the website operator. However, the default option that the website operator should remove material in what is likely to be the majority of cases – i.e. where the original poster is not contactable or is unwilling to reveal their identity – could have a potentially large chilling effect on freedom of expression if the operators themselves are not prepared to defend the posting on the basis of one of the other defences available to them.

The Act further provides, under Section 10, that a court “does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of.” This is subject to the condition that a court may have jurisdiction where it is satisfied that “it is not reasonably practicable for an action to be brought against the author, editor or publisher of the statement.” What might be considered “reasonably practicable” is a matter for the courts, but for s 10 to have any real effect it must be hoped that this derogation from the general rule is used sparingly. A wide interpretation here, which is to be preferred, is that if the person in question is identifiable (by whatever means, including by a Norwich Pharmacal order[3]), a website operator should not have an action commenced against it – as it will generally not be a publisher until it has been put on notice and had a reasonable time to respond. Even after notice a website operator may still have a defence under Regulation 19.  A pure ISP which does not host any potentially defamatory statements should always be able to avail itself of this defence.

The final section of the Act which is directly applicable to the operators of websites is Section 13. This provides that where a court gives judgment for a claimant in a defamation action it may order the operator of a website on which the defamatory statement is posted to remove the statement. This wording may be troubling to website operators for several reasons, which were highlighted during the consultation period of the Act but which have not been implemented into the enacted legislation.

The power applies even where the court does not grant an injunction to prevent republication of the words complained of. As such, this section has the effect of granting an injunction even where the court has not undertaken an exercise to determine whether an injunction is appropriate.

Furthermore, the section could be interpreted to allow a claimant to ask a website operator to remove all instances of the defamatory words, whether or not they form part of the original article complained of. This could potentially have the effect of allowing the claimant to remove all instances of the defamatory material, even though he has only complained in respect of one specific publication. It is to be hoped that the courts are alive to this potential chilling effect on freedom of expression and ensure such orders are narrowly framed.

If they are not, the further logistical problem caused is that it may simply not be practical for a website operator to remove all instances of the defamatory words, without being directed to the precise locations where the words appear, by reference to a URL. Again, claimants seeking such orders, and the courts in granting them, should be made aware that a blanket order to remove the words is likely to be too onerous and therefore ineffective and an order should be as precise as possible to enable a website operator to comply.

Peer-reviewed Statements in Scientific or Academic Journals

This is a new area of qualified privilege which relates to peer-reviewed material in scientific or academic journals.  The term scientific is said in the explanatory notes to include medical and engineering journals.  There are two conditions, the first is that the statement relates to a scientific or academic matter and the second is that before the statement was published an independent review of the statement’s scientific or academic merit should have been carried out by the editor of the journal and one or more persons with expertise in the scientific or academic matter concerned (the peer-review).  There is also provision in the section for privilege to attach to the publication of such assessments.

This section was a product of considerable lobbying following the case brought by the British Chiropractic Association against Simon Singh for his comment that the BCA “happily promotes bogus treatments.”  The BCA dropped their case after an unfavourable ruling in the Court of Appeal where Lord Judge adopted comments of Judge Easterbrook in Underwager v Salter, 22 F.3d 730 (7th Cir. 1994), a US libel action over a scientific controversy, that the plaintiffs “cannot, by simply filing suit and crying that ‘character assassination!’ silence those who hold divergent views no matter how adverse those views may be to the Plaintiffs’ interest.”  See British Chiropractic Association v Singh [2010] EWCA Civ 350.

There had been a similar action brought by a US company in NMT Medical against the Cardiologist Peter Wilmshurst for defamatory statements that he had made to the press questioning the findings of a clinical trial of one of their products.  That case collapsed after NMT experienced financial difficulties.  There had been a similar claim by a vitamin entrepreneur Dr Matthias Rath against Ben Goldacre for criticisms he had made of Rath’s promotion of vitamin pills to AIDS suffers in South Africa which was published in The Guardian.  Rath dropped his action.

The section does not perhaps go as far as the lobbyists had hoped and is confined to peer-reviewed scientific or academic material rather than all scientific debate.  Claims in respect of general scientific debate may however be easier to defend as honest opinion or on the basis that no serious harm can be established or that the company in question cannot prove serious financial loss.

Reports Protected by Privilege

This extends and updates the circumstances in which defences of absolute and qualified privilege are available under Sections 14 and 15 of the Defamation Act 1966.  The reports themselves must be fair and accurate and of public interest and for the benefit of the public.  Absolute privilege attaching to fair and accurate contemporaneous reports of court proceedings is extended to  any court established under the law of a country or territory outside the United Kingdom  as opposed to the previous limitation which was to courts in member states, the European Court of Human Rights, the European Court of Justice and certain international tribunals.

Of particular interest is extension of qualified privilege to a fair and accurate report of proceedings at a press conference held anywhere in the world for the discussion of a matter of public interest.  The privilege that previously related only to UK public companies is now extended to listed companies within the meaning of Part 12 of the Corporation Acts 2009.  There are corresponding extensions of qualified privilege under s 15 in paragraphs 9 and 10 of Schedule 1 for fair and accurate reports of notices issued by legislators, governments or international organisations or documents made available by courts of the European Union or certain international organisations so that the privilege now extends to all countries.  The same principle is applied to findings of certain associations listed in paragraph 14 of Schedule 1 formed in the United Kingdom or another member state which are now extended to associations formed anywhere in the world.

There is also under paragraph 14 a qualified privilege for a fair and accurate report of proceedings of a scientific or academic conference held anywhere in the world or a summary of material published by such conference.

Single Publication Rule

This is one of the most significant changes in the Act and abolishes the rule in the Duke of Brunswick case which enabled claimants to rely on continuing publication on the Internet to circumvent the one year limitation period.

The Act replaces the principle that each publication gives rise to a separate cause of action.  Under Section 4A of the Limitation Act 1980 the cause of action is to be treated as having accrued on the date of the first publication provided that the statement subsequently published is substantially the same as the first publication.  The obvious advantage to defendants is that they will normally be able to rely upon the limitation period expiring one year after first publication even if the article remains online.  The court’s discretion under Section 32A of the Limitation Act 1980 to extend the time limit remains.

The Act does not introduce a “deemed date of publication,” preferring instead to tie limitation with “first publication.” This may prove to be a shortcoming but it is to be assumed that the concept of first publication will require some positive action by a publisher (as opposed to the passive role played by a publisher when material is accessed on its website). In the case of newspapers, the publication date is already deemed to be the date of the paper, as it has been traditionally assumed that a newspaper is read on the day that it is first published. For online publication, the first publication date should be the date upon which the material is first uploaded or made available via the Internet, as is the position in most American states today.

A critical question will arise under Section 8(5) as to whether the manner of a subsequent publication is materially different from the manner of the publication of the first publication and the matters to which the court may have regard include:

  • The level of prominence that a statement is given and the extent of the subsequent publication.  If, for example, the written publication was somewhere relatively obscure and, as the official explanatory notes suggest, requires several clicks to access it but has subsequently been promoted to a position where it can be directly accessed from the home page, that could amount to a materially different publication.
  • If a new edition of a book is published, there may well be an issue as to whether its publication is materially different, something that the US courts have grappled with for some time.  In determining whether or not there is a new publication there will be a tension between whether this is simply the original publication or whether it has been repackaged or represented in a different form so as to render it a new publication for the purpose of limitation.  There is no reason why the first publication date should not mirror the US model and be the date of publication of the hardcopy edition of a book, with a second publication date for any subsequent paperback edition and for e-books, the date upon which a particular edition is made available for download.[4]

The issues to be determined will inevitably be fact specific and there is scope for considerable litigation in this area. Questions to be answered will probably include: does the addition of a new link to archived material change the level of prominence or the extent of the subsequent publication from a relatively difficult matter to access to a more prominent item on a home page?  Is the repeat of a broadcast simply a republication of the existing material outside the limitation period or is it materially different?

Where any content is retransmitted in a different format, or is modified or changed in a material way, such as to change its meaning or context as opposed to a mere change in its presentation, then the modified version will almost certainly be considered to be a new publication which triggers the start of a fresh limitation period. However, for the purpose of calculating limitation the original publisher should be considered only to be liable as a publisher of the republished, altered content where he authorised or intended it and not for any republication by a third party outside of his control. (As explained by Gatley, the question is whether the defendant authorised “the substance and the sting.” Para 6.38 11th Ed.)

The new rule will not, on its face, assist republication of material by another party. In such a case, any claim in defamation must be commenced against the third party responsible for the publication of the altered content within 12 months of the first publication of this content.

Action against a Person Not Domiciled in the UK or Member State

The changes introduced in Section 9 are of substantial benefit to foreign defendants. Contrary to a number of assertions libel tourism has been a significant concern in this jurisdiction. There may not have been that many cases since Boris Berezovsky sued Forbes magazine for its profile of his criminal activities in Russia and Switzerland but in advisory terms the existence of the potential of the libel action in the United Kingdom has had a distinctly chilling effect on publishers who had assets in the United Kingdom notwithstanding the passing of the Speech Act in the USA.

The previous law was particularly iniquitous in respect of publications which, for all intents and purposes, were not published in the United Kingdom but could be downloaded in the UK, for example, where the publication simply arose out of worldwide searches against a name of a given and often controversial individual.  Under the Act, provided that the defendant is not domiciled in the UK or another member state or a Lugano Convention country, a libel action cannot be brought unless the court is satisfied that of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring the action.

It will no longer be sufficient simply to point to a not insubstantial amount of publication including on the Internet, to prevent the claim being struck out as an abuse of process nor to assert that a real and substantial tort has been committed within the jurisdiction; international businessmen were in the nature of things able to point to business and social contacts in England and Wales.  Claimants in seeking permission to serve proceedings out of the jurisdiction will now have to address matters such as the extent of the publication in this country as opposed to elsewhere and demonstrate that England and Wales is clearly the most appropriate jurisdiction.  The claimant will have to deal with issues such as the amount of damage to the claimant’s reputation in this jurisdiction compared to elsewhere and the extent to which the publication was targeted at a readership in this jurisdiction and whether there was reason to think that the claimant would not receive a fair hearing elsewhere.  Additionally, the claimant would have to show that the defamatory statement had caused or was likely to cause serious harm to his reputation.  The mere fact that in reality the claimant would have difficulty in successfully suing an American publication in the United States is likely to be insufficient, although it will no doubt, be a factor relied upon by claimants.

There will be a dual approach to claims by foreign claimants.  Under the Brussels Regulation (Articles 2 and Articles 5(3)) and the Lugano Convention the claimant has the choice of suing the defendant in the court of the member state in which it is domiciled for all the damage which he has suffered through publication throughout the European Union (giving the defendant home advantage but an inability to contest jurisdiction).  Alternatively, the claimant can sue in any contracting state of his choice where the harmful event had occurred but this is limited to the extent of publication in that country.  However, following the Court of Justice decisions in Joined Cases C-509/09 and C-161/10 Olivier Martinez v MGN Limited and EDate Advertising GmbH [2012] Q.B 654, the claimant can now sue in respect of all damage he has suffered as a result of publication on the Internet throughout the European Union in the jurisdiction where he can establish his center of interests.

Trial by Jury

The presumption in favour of trial by jury as envisaged under Section 69 of the Senior Courts Act 1981 has now been removed.  Trial will be without a jury unless the court rules otherwise.  This reflects the increasing reluctance of the courts to permit trial by jury.  Over the last five years jury trials have been rare. While one can think of cases where juries may have been thought to be helpful to media defendants such as the claim brought by Jonathan Aitken against The Guardian it is advantageous to defendants that trial by jury will cease, unless the court orders otherwise.  Trial by jury has been calculated to be at least 30% more expensive.  Many libel actions hinge upon rulings as to meaning.  Such rulings have hitherto been hamstrung by the fact that the judge would be ruling on what decisions would be open to the jury, now the judge will be able to determine what the words actually mean.

Publication of Judgment

The Act gives the courts, for the first time, the power to order a summary of a judgment in defamation generally in favour of a claimant to be published. This can be contrasted to the provision in the 1996 Act which limited the power to summary disposal proceedings where the parties were unable to agree the terms of an apology or correction. (The procedure under the 1996 Act survives in respect of summary disposal which is a separate procedure that can continue to be used where appropriate.)

Section 12(2) provides that the wording of any summary, time, manner, form and place of publication are matters for the parties to agree.  The court can give such directions as necessary when the parties cannot agree.

It is unclear how this procedure will operate where the defendant is not a publisher or broadcaster and it is arguable that it will have no effect in such circumstances. Indeed it is difficult to see how the court can order someone to publish a summary in a publication that it has no control over. The threat of court interference will no doubt be used by claimants as leverage in discussions with publishers, who are unlikely to welcome judicial interference in such matters.

Northern Ireland and Scotland

The Act does not apply to Northern Ireland, a matter of some concern for UK publishers who have a presence in the jurisdiction as well as local publishers. Until now, and in contrast to Scotland, the law has been the same in Northern Ireland and reports in local press suggest that the decision was taken by the Finance Minister without reference to or consultation with the media.  There appears to be no rationale justification for the decision not to accept the Act. In theory it paves the way for more claimant actions in Belfast although whether or not the floodgates will open is hard to tell.

The Act’s application in Scotland is limited, with only certain limited provisions set to come into force there. The only real change is the extension of privilege under ss 6 and 7 of the Act. These provisions, as in England, have not come into force yet and are awaiting appointment by Scottish Ministers.

Conclusion

The Act is a welcome and long overdue reform of the law of defamation.

Overall the changes to the law of defamation introduced by the Act will largely favour defendants. The changes in relation to serious harm, the operator of website defence, the public interest defence, the single publication rule, the restrictions on libel tourism and the virtual abolition of jury trials will all significantly assist the defence of libel action.  However, so far as media defendants are concerned, gains must be viewed against the burdens likely to be imposed upon them as a result of Leveson in terms of regulation, an arbitration system free for claimants but bankrolled by the media and a significant costly regulation structure.  While defendants will fare better in the High Court, they are likely to face a considerable growth in small but costly defamation claims under the Leveson arbitration.  In what turn out to be a fairly rough and ready form of justice with an emphasis on speedy resolution, defendants may find it difficult to secure all the benefits conferred by the changes of the Defamation Act 2013.


* David Hooper, Kim Waite, and Oliver Murphy are lawyers with RPC in London.  Brid Jordan is a Senior Editorial Lawyer at Times Newspapers Limited.

[1] http://www.legislation.gov.uk/ukpga/2013/26/enacted

[2] http://www.olswang.com/media/29576493/defamation_bill_section5_regulations.pdf

[3] http://en.wikipedia.org/wiki/Norwich_Pharmacal_Order

[4] For more information see The Single Publication Rule and the Internet: Applying an Old Rule to New Publishing Platforms, MLRC Bulletin 2012.

 
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