The Defamation Act 2013 and its explanatory notes

13 May 2013

Author: Olivia O'Kane
Practice Area: Media and Defamation

The curious case of The Defamation Act 2013 and explaining the explanatory notes

The Defamation Act 2013 received Royal Assent on Friday 26th April 2013 after nearly three years of political backbiting.  The Government indicated its intention to review the law of defamation on 9 July 2010 when it announced its intention to publish a draft Defamation Bill, the Bill was published for full public consultation and pre-legislative scrutiny on 15th March 2011 and the consultation closed on 10 June 2011.  In addition to this there was scrutiny by a Parliamentary Joint Committee undertaken.

The civil law on defamation has developed through judge made law over the years and it has been supplemented by statute, most recently the Defamation Act 1952 and the Defamation Act 1996. The new 2013 Act introduces the first substantial reform of defamation law since 1843.

The territorial extent and application of the Act extends to England & Wales only with certain provisions applicable to Scotland.

The NI Assembly rejected the notion of passing a “legislative consent motion” which would have enabled the Act to extend to NI.

Libel law in Scotland[1] has always departed from the rest of the UK whereas NI is in all relevant respects identical to that in England & Wales.

The growth of the online arena and of Global society makes laws more complex and challenging which is why we must change and reform our laws to better meet the challenges of modern life and of the application of modern laws.

The recent reform of libel law does not only affect the traditional media outlets but affects citizens, corporations, human rights NGOs, website operators, bloggers, academics and scientists alike.  The Act arguably strikes a careful balance of ensuring the protection of the right to a good reputation whilst acknowledging the right to freedom of expression.

The laws of defamation are a legal minefield, not just for journalists but for potential complainants.  The Defamation Act 2013 provides legal clarity and simplifies the existing law defining the boundaries of free speech. 

The defamation laws in NI are made up of a complex myriad of case law and statute.  Whereas the Act provides a succinct comprehensive 17 section 10 page long document.

The key provisions of the Act include:

1.  The Act will assist in weeding out potential spurious claims with the introduction of a serious harm test [s1] which raises the bar for bringing a claim.  A statement is not defamatory unless its publications has caused or is likely to cause serious harm to the reputation of the complainant.

This reflects the common law position most recently acknowledged in Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 where the Courts recognised that there must be a threshold of seriousness in what is defamatory before one can succeed in a libel action.

  1. The implication for corporate bodies is that the Act curtails the ability of organisations that trade for profit to sue for libel and provides protection to those that fairly or honestly opine on corporate products without fear of legal proceedings.

For the purposes of the Act, harm to the reputation of a body that trades for profit is not serious harm unless it has caused or is likely to cause the body serious financial loss.

This reflects the fact that bodies trading for profit are already prevented from claiming damages for certain types of injury such as injury to feelings and were thus in practice likely to have shown actual or likely financial loss.

  1. The new law lists six statutory defences.  The defences of truth [s. 2] and honest opinion [s.3] replace the common law defences of justification and fair comment[2] which broadly reflect the current law while simplifying and clarifying certain elements.

The defence of truth reflects the position set down in Chase v News Group Newspapers Ltd [2002] where the Court of Appeal indicated that in order for the defence of justification to be available the defendant does not have to prove that every word (s)he published was true but rather establish the ‘essential’ or ‘substantial’ truth of the sting of the libel.

The honest opinion defence clarifies the law as it may apply to different circumstances.  Examples of the different facts that may need to be demonstrated in relation to an article expressing an opinion on a political issue, comments made on a social network, a view about a contractual dispute, or a restaurant review or critique of a play is referred to in the explanatory notes and would benefit from this codified defence.

Honest opinion arises where a simplified threefold test is met:

  1. The statement complained of was a statement of opinion;

This is aimed to reflect the law as established in Cheng v Tse Wai Chun Paul (2000) 10 BHRC 525 that the statement must be recognisable as comment as distinct from an imputation of fact.  It is implicit that the assessment is on the basis of how the ordinary person would understand it.  The defence includes an inference of fact as a form of opinion.

  1. The statement indicated whether in general or specific terms the basis of the opinion;

This reflects the test approved in Joseph v Spiller[3] that the “comment must explicitly or implicitly indicate at least in general terms the facts on which it is based”.

  1. An honest person could have held the opinion on the basis of any fact which existed at the time the statement complained of was published  - or - anything asserted to be a fact in a privileged statement published before the statement complained of.

This is an objective test made up or two elements.

The defence is defeated if the complainant establishes that the defendant could not have held the opinion.  This is the subjective test, which reflects the common law position that if a complainant showed that the statement was actuated by malice the defence is defeated.

It extends to circumstances where the defendant is not the author of a statement and it is published in a newspaper comments section, the defence is defeated if the complainant can show the defendant knew or ought to have known that the author did not hold the opinion.

The Act upholds that there is no defence in repeating what someone else has said which is libellous - the repetition rule s.2(1).

The codification of this previously technical and complex defence aims to simplify the law with a straightforward test which embraces the broad principles set down in the current common law.

  1. s. 4 provides the new defence of publication on a matter of public interest but which is not intended to be a new departure from the current law but rather to be based on the existing common law defence that was established in Reynolds v Times Newspapers[4] and which is intended to reflect the ten non exhaustive principles established in that case and in subsequent case law. 

This clause simplifies the principles set down in Reynolds and most recently set out in Flood v Times Newspapers[5].  This clause is intended to codify the common law as already delivered by the Courts.  Investigative journalists have legal certainty and clarity on how they can investigate matters in the public interest.

Notably, a defendant newspaper will not be penalised for a failure to verify pre publication a reportage piece.  Express acknowledgement of editorial judgment is provided at section 4(4).

  1. s.5 creates a new defence for the operators of websites where a defamation action is brought against them in respect of a statement posted on the website.  It provides greater protection for website operators and content hosts. 

If the operator shows that they did not post the statement on the website it is a defence. 

Comment sections or opinion blog posts benefit as a complainant must first contact the author of the statement rather than just suing the host of the website.  But if it is not possible to identify the author the defence is defeated where notice of a complaint is given to the operator and it failed to respond.

The defence is not defeated by reason only of the fact that the operator moderates the statements posted on it by others.

  1. s6 extends qualified privilege to the publication of peer-reviewed statements in scientific or academic journals of a scientific or academic conference and includes scientific and academic journals in print or electronic form. 

The complex defence of qualified privilege is simplified so that scientists and academics and bloggers and journalists publishing fair and accurate reports or matters of public interest is protected from the threat of legal action and substantial legal costs.

Simon Singh v British Chiropractic Association [6] brought to light the problems that arise when lone scientists contribute to public interest debates and previously fell afoul of extremely expensive and costly libel proceedings.

  1. s.7 absolute and qualified privilege extends to fair and accurate contemporaneous reports of court proceedings or in public of a legislature for instance or press conferences or documents circulated by UK public companies.

A press conference was protected as it was considered under the common law as a public meeting pursuant to the existing law set down in McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277.

  1. Under the new single publication rule claims must be brought within one year of their first publication.

s.8 will benefit the social media user and online community from the one year statutory limitation period applying to online publications as well as print and broadcast so that the one year time limit starts to run from the date of first publication and not each time an online article is accessed or downloaded.

This replaces the multiple publication rule whereby each publication of defamatory material gives rise to a separate cause of action which is subject to its own limitation period.

The aim of the Act is to catch publications which have the same content or where the content has changed very little so that the essence or sting is the same.

  1. s.9 deals with the libel tourism issue, which is a terms which is used to apply where cases with a tenuous link to E&W have previously been brought through the English Courts. 

This provision prevents action being taken against a person not domiciled in the UK or a EU Member State or a Member State of the Lugano Convention.  Such action can only be brought if the British Courts are the most appropriate forum in which to bring the action in respect of an alleged libel. 

An example is given that if a statement is published 100,000 times in Australia and only 5000 times in E&W that should be good reason to prevent the action from proceeding in E&W, however other factors may be relevant such as whether England is the central home of the claimants reputation or if there is reason to believe the complainant would not receive a fair hearing elsewhere or the extent to which the publication targeted a specific readership in that jurisdiction.

This provision will weed out trivial claims and prevent conflict with European jurisdictional rules.

  1. s 9 prohibits an action for defamation being brought against someone who is not the primary publisher, author, editor of a 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.
  2. s 10 removes the presumption in favour of a jury trial.
  3. s 11 gives the Court power to order a summary of its judgment to be published where parties cannot agree an apology or correction.
  4. s 12 provides the power to order removal of a statement complained of or to cease distribution of the defamatory material.

Conclusion

The NI Assembly should at the very least reconsider halting the extension of libel reform to NI without having a proper, open and public consultation on the issue.  There must be an open debate in NI about bringing it back into line with the rest of the UK.

The press are the eyes and ears of society and act as public watchdog.  Chilling press freedom of speech damages the public community at large.  Investigative journalism is one of the cornerstones of democratic society evidenced through MPs expenses scandal and the BBC’s recent Bafta for its documentary of child abuse in the Catholic Church.

It seems a strange reality that a two tier libel regime will operate throughout the UK with a non codified and complex legal system in Northern Ireland compared to a codified, simplified and user friendly legal system in E&W.  The online user in NI will not have the same benefits as those tweeting and blogging E&W which chills free speech and especially inhibits pubic interest debates.

Claims in E&W can now be easily identified providing legal certainty and reducing the risks of unnecessary legal costs and legal action.

NI is being isolated and it must ensure that it keeps up to date with the modern world and that free and open investigative journalism are not censored and protect a free press and public interest blogging.

Let’s hope the two tier approach will not encourage media organisations to exit NI and curb economic growth and inward investment in NI.  We do not want to face a proposition that the UK media may have to sanitise news broadcast in NI. 

[1] Scots Law and its legal system dates back to the 1707 Act of Union where by the Scots civil law contains elements which has origins in Roman Dutch Law rather than just English Common Law.  It operates a separate civil and common law hybrid legal system.

[2] The Supreme Court in Spiller v Joseph [2010] UKSC 53 referred to it as honest comment

[3] Ibid footnote 2

[4] Reynolds v. Times Newspapers Ltd and Others [1999] UKHL 45; [1999] 4 All ER 609; [1999] 3 WLR 1010 (28th October, 1999)

[5] Flood v Times Newspapers [2012] UKSC 12

[6] [2010] EWCA Civ 350

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