The new Defamation Act: headline issues

The Defamation Act 2013 (the 2013 Act) came into force early this year. It makes a number of changes to the statutory regime, introducing a requirement to show "serious harm" and clarifying the circumstances under which companies can bring proceedings. The 2013 Act also sets out new statutory defences on matters of public interest, where statements are true or where they constitute honest opinions, as well as a new defence for website operators. While the 2013 Act provides some welcome clarity, the issue of costs remains to be determined under separate regulations - creating a degree of continuing uncertainty.

Fit for purpose?

In England and Wales, the civil law on defamation - slander and libel - has developed through the common law. Decisions by judges have been supplemented by statute, most recently the Defamation Act 1952 and the Defamation Act 1996 (the 1996 Act). The law came under criticism for being too "claimant-friendly" because of a presumption of falsity, meaning that the burden of proof was on the defendant to establish that the contested statement was true. The claimant was not required to prove specific loss and large awards of damages also proved controversial. This gave rise to concerns over freedom of expression and, in particular, the freedom of the press. The 2013 Act attempts to address some of the issues.

The Defamation Act 2013: key provisions

• Serious harm: a statement is not defamatory unless its publication causes "serious harm" to the claimant's reputation (s 1(1)). For a body that trades for profit, such harm is not "serious" unless it has caused/is likely to cause serious financial loss (s 1(2)).
• Truth: this provision replaces the common law defence of justification - a defendant is not liable for defamation if the statement was true (s 2). If one or more imputations are not shown to be true, the defence will still stand if those unproven imputations do not seriously harm the claimant's reputation (s 2(3)).
• Honest opinion: this provision replaces the common law defence of "fair comment" (s 3). The honest opinion defence requires that:
  • the relevant statement was a statement of opinion;
  • the statement indicated the basis of the opinion; and
  • an honest person could have held the opinion on the basis of a fact that existed at a time the statement was published (or anything asserted to be a fact in a privileged statement published prior to the complained-of statement).
• Matter of public interest: replacing "Reynolds" privilege, section 4 makes it a defence to show that the statement concerned a matter of public interest and the defendant reasonably believed it to be so.
• Website operators: supplementing defences under the 1996 Act and the E-Commerce Regulations¹,section 5 creates a new defence for website operators where an action is brought against them in respect of a third party statement posted on the website. There are various limitations to the defence, including the requirement for the operator to have responded to any notice of complaint requesting details of the person who posted the statement.
• Peer-reviewed statements: peer-reviewed material in scientific or academic journals is privileged - meaning it cannot found an action for defamation - provided it is not malicious, relates to scientific or academic content and has been subject to proper review prior to publication (s 6).
• Single publication rule: removing the threat to publishers that every repetition of a statement could give rise to a new cause of action, this rule states that first publication triggers a one-year limitation period in which the claimant can bring a claim (s 8).
• Jurisdiction: in an effort to curtail "libel tourism", section 9 specifies that UK courts only have jurisdiction to hear a case against a defendant who is non-domiciled in the UK, the EU or a state that is party to the Lugano Convention if the UK is clearly the most appropriate place to bring the action.

A question of cost

One of the main criticisms of the defamation regime has been the disproportionately high costs awarded to successful claimants. LJ Jackson made a number of cost reforms, including that success fees under conditional arrangements should not be recoverable from the losing party. His recommendations were applied in April 2013 but have been suspended pending a Government consultation process and implementation of the Leveson reforms. The Government has proposed a regime that would protect parties of modest means from prohibitive costs in defamation and privacy cases - this is likely to introduce means testing into defamation proceedings. The new regime is intended to be implemented through changes to the Civil Procedure Rules in April 2014 and it is hoped that clarity on the all-important issue of costs will bring more equity into UK defamation law.

Please click on the links below for the other articles in the March 2014 Technology & IP newsletter

• Linking to free content does not infringe copyright
• International trade mark are subject to "genuine use" requirements in the EU
• The Trademark Clearinghouse: Protecting your trade mark online
• Dedicated meta search engine breaches database right
• Court of Appeal confirms Greek yogurt must be made in Greece

_Notes:

_{¹ The Electronic Commerce (EC Directive) Regulations 2002, which implements the EC Directive on electronic commerce (2000/31/EC).}