The Defamation Act 2013 ("the Act") received Royal Assent last month – it has not yet come into force, but is expected to do so soon. The Act has been long in the making and provoked much debate among practitioners, but in essence it is designed to modernise the law of defamation and also make it fit for purpose in the digital age. We shall examine how this is to happen by describing some of the major changes the Act will introduce.

1. Serious Harm

The Act begins by establishing a new statutory bar which is designed to weed out trivial libel claims by the imposition of a test of "serious harm". A statement will not be considered defamatory "unless its publication has caused or is likely to cause serious harm to the reputation of the claimant". This test focuses on the harm caused, rather than whether any harm was intended.

Where the claimant is a business, it will only be able to pass the serious harm test if the statement has caused or is likely to cause "serious financial loss". This additional barrier for businesses has yet to be applied by Judges, but presumably credible evidence of reduced trading or other financial loss will need to be available to the Court which establishes a link between the publication (or threatened publication) and financial damage. Much is also likely to turn on the operation of judicial discretion in applying this test.

2. Honest Opinion/Public Interest

It is a defence to a libel claim to establish that the statement was honest opinion and this defence is now codified in the Act, albeit with one important distinction: the new statutory defence of honest opinion does not require a defendant to establish that the subject matter of the opinion relates to a matter of public interest. This represents a move to widen the availability of the availability of the honest opinion defence and will be seen by some as removing an unfairness in the existing law.

Public interest is far from redundant though. Instead, it has been elevated into a new statutory defence which will apply to defeat a libel claim when the statement complained of was, or formed part of, a statement on a matter of public interest and the defendant reasonably believed that publishing its statement was also in the public interest. This transformation has been made at the expense of the former Reynolds defence which it replaces, but this new statutory defence is still designed to foster responsible journalism and yet have wider applicability.

3.Websites

Operators of websites are going to become subject to a new set of regulations governing their conduct when they are contacted with a complaint about the content posted on their sites. In return for compliance with the new regulations, website operators will be given greater protection from libel claims. In effect, where a libel claim is made against an operator in respect of a posting on the site, it will be a defence to the claim for the operator to show that it did not post the statement on its the website.

However, the defence will fail if the claimant can show that:

  • it was not possible for it to identify who posted the statement;
  • it provided the operator with notice of the complaint about the statement; and
  • the operator failed to respond in accordance with the regulations.

Clearly the thinking here is that claims ought to be aimed at those who post defamatory material on websites, as opposed to those who merely operate the websites allowing users to post messages.

In addition to the above, if a claimant obtains judgment for libel the Court will have the power to order a website on which the defamatory statement is published to remove it. In theory this development should be of great assistance to those who find themselves defamed and confronted by mass repetition of the libel online. However, enforcing the order against websites which are located abroad might prove tricky.

The reforms to be brought in by the Act are obviously designed to bring about changes for the better, but whether the Act delivers this in practice will only be established in the years to come.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.