Fishburn Hedges

17.03.2011

The draft Defamation Bill published this week could have wide-ranging implications on libel law, both for businesses and individuals. Here, Chris Hutchings, media litigation partner at Hamlins, outlines some of the key issues under debate.

Earlier this week, the Government unveiled the long-awaited draft Defamation Bill and started consultation on this and some other issues which it does not address.

Some media reports have hailed the host of new libel defences.  It is widely claimed that the proposed reforms are a move in the right direction, but what is the reality?

True, many aspects of the proposed reforms are likely to liberalise the law for publishers and the wider media. However, the widely anticipated reforms to limit the ability of companies to bring claims or reform the law surrounding internet libel are not there, despite promises by the Coalition Government.  They are, however, subject to consultation (which ends in June 2011).

The key aspects of the proposed reforms are:

Requirement to show substantial harm

Currently, claimants do not have to prove damage as it is presumed to flow from the publication of defamatory statements.

The draft Bill proposes that claimants should have to show that a defamatory statement has caused, or is likely to cause, substantial harm.  The law has already started to move in this direction in any event, but this will lead to hearings at an early stage of claims and reduce the amount of litigation.

Defence of responsible publication on a matter of public interest

This is the statutory equivalent of the long-standing, but evolving, defence, Responsible Journalism.  The reform is aimed at making the defence easier to run but it is recognised that the defence will need to be developed by the Courts.

In summary, the defence sets out a number of points for the Courts to consider.  For example, whether the publisher sought the views of the subject of the publication and what steps were taken to verify the allegations.

However, the Bill emphasises that these are only some factors which the Court will consider but that other factors (which are not set out in the Bill) will also be taken into account.

Statutory defence of truth

This renames the existing defence of “justification” and puts it on a statutory footing.

Existing case law will be used as guidance but will not be binding on the Courts. The defence will succeed where a publisher can show that the defamatory meaning conveyed by a publication is substantially true. This remains a fact-based defence.

Statutory defence of honest opinion

This renames the existing defence of “honest comment” (until recently “fair comment”) and puts it on a statutory footing. This is a comment- or opinion-based defence.

The reform in relation to this defence is more substantive than the reforms proposed in relation to “truth”. The defence has been recently liberalised by case law and this proposed reform seeks to broaden the defence further. What may constitute an allegation of fact or comment is not addressed.

Amendments to defences of absolute and qualified privilege

There are already a large number of forms of privilege defences which, broadly speaking, permit publication of comments and documents in certain circumstances, subject to certain conditions.  (Typically, that the report is “fair and accurate”, the publication is for the public benefit and is not made maliciously.)

The proposed reforms will extend the categories of privileged occasions and/or documents including the reports of scientific and academic conferences. It further proposes extending privilege relating to reports of Court proceedings and meetings of public companies to across the globe (as opposed to being restricted to UK or EU proceedings or meetings).

The single publication rule

Currently, each publication of defamatory material exposes publishers to a risk of complaint within a one year limit. This is particularly troublesome in the age of the internet where every website hit is a new publication giving claimants a one-year limitation period in which to complain.

The Bill abolishes the multiple publication rule in favour of a single publication rule. Now the date of first publication will be the date on which the limitation period starts.  Where an article is published in hard copy which is “substantially the same” then the date of publication will be deemed be the date of the hard copy publication.

This reform is significant and is likely to lead to extensive case law, in particular as to whether the publication is “substantially the same” or “materially different”.

Libel tourism

Whilst recognising that the statistics do not support concerns about so-called “libel tourism”, the Government has in any event sought to limit the ability of those not domiciled in the non-EU Member States to bring claims. (NGOs argued that the threat of proceedings also needs to be taken into account when considering the issue of “libel tourism”.)

Removal of presumption in favour of trial by jury

Libel trials with juries are an increasingly rare phenomenon. However, the Government regard that removing the presumption in favour of trial by jury in libel actions will mean that issues such as determining the actual meaning of a publication could be done at an early stage, leading to less costs being incurred on each side.  Jury trials will be available where the Court deems it to be in the interests of justice.

Reforms that the Government will consider but have not incorporated within the draft Bill include the following:

• Responsibility for internet publication
• Corporate libel
• Procedural reform
• The summary disposal procedure

 

Chris Hutchings is media litigation partner in the entertainment, media and intellectual property department of Hamlins.  Specialising for twenty years as a libel and privacy lawyer, Chris is recognised as a leading expert in his field and has acted both for and against newspapers, magazines and television.

This summary is for information purposes only and should not be relied upon in any way.  In any event, the Bill is not likely to come into force until May 2012.

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