For a brief period it seemed as if the much discussed Defamation Bill was in line to be cast into the legislative scrapheap of history as it emerged the Bill had become a party political battleground about how to best implement the Leveson Report’s recommendations on press regulation.
The legislative fault line concerned the new clause 2 of the “Putnam amendments”, named after the Labour Peer Lord Putnam, who along with Baroness Boothroyd, Lord Mackay and Baroness Scotland had tabled the amendments. Clause 2 proposed to create a statute based press regulator which, in principle, echoed the recommendations of the Leveson Report. The Conservative party, while agreeing with the need for a new and beefed up press regulator, had opposed any statutory underpinning for such a body. The result was a standoff which saw David Cameron indicating that unless there was cross-party agreement the amendment would be dropped, and the Bill could be scrapped altogether.
Media commentators asserted the Bill’s only chance of success was a cross-party deal on the new press regulator. That came in the form a Royal Charter for press regulation after which it was agreed by the party leaders the controversial amendment would be dropped. The new agreement, perhaps predictably, left both sides claiming a victory. The amendments will be considered on the floor of the House of Commons on 16 April 2013.
Now that the political manoeuvring around the Bill has subsided and a version will in all likelihood come into force later this year, it seems pertinent to consider some of the changes we can expect to the defamation landscape in light of the latest version of the draft Bill.
- First, we can expect the introduction of a new test of what is defamatory. At clause 1 the Bill proposes that “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation to the claimant.” It is difficult to assess whether this definition will add anything to or significantly differ from the threshold of seriousness already set out in Thornton v Telegraph Media Group  EWHC (QB) 1414.
- Clause 3 of the Bill concerns defamation claims from non-natural persons. The Clause would require for the first time a non-natural person (such as a company) to seek the permission of the court before bringing an action for defamation. The Clause requires the non-natural person to show the publication has caused (or is likely to cause) “substantial financial loss.”
- Clauses 4 and 5 are essentially bringing the common law defences of justification (“Truth”) and honest comment (formerly “fair comment” prior to its rebranding in Joseph v Spiller  UK SC53) onto a statutory footing while abolishing the common law defences. No doubt much court time and money will be spent analysing the differences between the statutory defences and their common law predecessors.
- Clause 6 is highly significant as it proposes the abolition of the common law defence of Reynolds privilege and appears to replace it with a more defendant-friendly public interest defence. This represents a change of emphasis from the common law defence which asks whether the publication was ‘responsible’ (looking at the method of publication) by instead focusing on the honesty and reasonableness of the publisher’s belief that publication would be in the public interest. The Clause is a response to frequent media criticism of the Reynolds defence being costly to argue in court and seldom successful, although it has been suggested that assessing whether a journalist’s belief was reasonable will essentially require the same analysis being applied under the current common law defence and therefore a change in emphasis may make little substantive difference. It remains to be seen how defendant friendly the new proposed defence actually is.
- Further, Clause 6, whilst not abolishing the common law defence of reportage introduces a new statutory form of it. The Government contends the defence reflects the current law as it stands. However, critics have argued the proposed statutory defence is more expansive. In particular they argue the fact the Clause asks whether it was “reasonable for the defendant to believe that publishing the statement was in the public interest” means the court could find the reportage defence satisfied on the basis of the public interest in the allegations themselves. In contrast, they argue the common law defence only applies where the public interest lies in the fact of a dispute and not in the allegations themselves.
- Clause 7 proposes to introduce a new defence for website operators in respect of third party posts. In essence this increases a website operator’s protection for posts by identifiable posters. The defence, unlike the statutory innocent dissemination defence in s.1 of the Defamation Act 1996, is not defeated by any degree of knowledge so long as the operator can show that it did not post the statement. The Clause is also designed to engender website operators to voluntarily disclose to defamation complainants the identify and contact details of the author of an anonymous defamatory post by sketching out a notice of complaint mechanism which if not complied with, would defeat the defence. Although, it should be added many important aspects of the defence have been left to regulations that have not as yet been drafted.
- Clause 8 proposes to introduce a qualified privilege defence relating to peer-reviewed material in scientific or academic journals. The defence would apply where two conditions are met: (1) that the statement relates to a scientific or academic matter; and (2) that before the statement was published in the journal an independent review of the statement’s scientific or academic merit was carried out by the editor and one or more expert prior to publication. The proposed introduction of this defence is to ensure debate on scientific matters is not stifled by defamation laws, this issue having come into focus in 2009 when science writer Simon Singh was sued by the British Chiropractic Association (BCA) for questioning claims it had made for the therapeutic benefits of chiropractic.
- Clause 10 proposes the introduction of the single-publication rule. Previously, the position was a publication occurred each time an individual read a publication, this rule became particularly irksome to newspapers with the advent of the internet and subsequent online versions of their publications. The rule, it was argued, led to ceaseless liability for anything published on the internet. The old rule will be abolished under the single-publication rule proposed in the Bill. From now on, the one year limitation period will begin from the date an article or statement is first published rather than from when it was last read. The change will be particularly protective of internet republications and archives. The Clause also provides the court has the discretion to disapply the limitation period in defamation claims.
- Clause 11 purports to deal with ‘libel tourism’ and provides that where the defendant is not domiciled in either the UK, another EU member state or in a state party to the Lugano Convention, the court would not have jurisdiction to hear a case unless 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 an action.” Although, it should be added no committee has ever found that libel tourism exists.
- Clause 12 provides that the court would 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 unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher. In effect, this clause adds protection to intermediaries such as retailers but will also apply to online intermediaries such as website operators.
- Clause 13 of the Bill introduces a momentous shift in defamation law by proposing a statutory presumption that defamation trials are to be conducted without a jury. Although, a trial by jury is still possible subject to an order by the court.
- Clause 15 provides that a claimant who obtains a judgment in defamation would be able to obtain orders from the court against those involved in the distribution of that defamatory content to desist from distributing it even though the claimant would not have any cause in action against those intermediaries.
Taken as a whole, the underlying shift indicates a clear attempt to make the current law more Article 10 friendly and to make it harder to bring a defamation claim and even harder to win a claim. However, the Bill leaves a number of important details to regulations which have not as yet been drafted. As with the introduction of any new legislation it remains to be tested. If anything, the changes have added complexity to the defamation landscape and there is the distinct possibility litigation will be increased rather than reduced as the parties to an action seek to determine the contours and meaning of the changes.