It's Not All Change... And It's Not Yet In Force
At last, after lengthy legislative to-ing and fro-ing, the new Defamation Act 2013 has been passed and is ready to come into force.
We are promised that "....the Defamation Act will be brought into force later in the year." https://www.gov.uk/government/news/defamation-act-reforms-libel-law In the words of Lord McNally, Justice Minister:
"The previous law on libel cases had been criticised as being antiquated, costly and unfair, which resulted in a chilling effect on freedom of expression and the stifling of legitimate debate.
The Defamation Act 2013 which has today completed its passage through Parliament will overhaul the libel laws in England and Wales and bring them into the 21st century, creating a more balanced and fair law."
It is already a subject of debate as to how much it will really change. Claimant lawyers seem to be minimizing its likely impact, stressing that it largely codifies existing judgemade law, and deals with some areas (like "libel tourism") that had become really only theoretical problems. Freedom of expression campaigners have given the Act a cautious welcome.
Much will depend on how the judges implement it once it's law.
In a nutshell the Act:
Introduces a "serious harm" threshold for defamation complaints (section 1)
To be the subject of a defamation action, a statement will have to have caused, or be likely to cause, "serious harm" to the reputation of the claimant.
The concept of libel actions being struck out which are trivial is an established principle of case law since Jameel (Yousef) v Dow Jones & Co. Inc. [2005] EWCA Civ 75 There is specific focus on corporate claimants: section 1(2) states that "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 does not mean a company will have to prove specific financial loss before being allowed to sue, but it does signal a greater emphasis at the outset of a complaint on whether serious financial loss is a likelihood as a result of the publication complained about by the company.
As such it probably tips the balance somewhat in favour of freedom of expression about corporate activities - i.e. it restricts the ability of corporate muscle to use the fear of libel proceedings to silence their critics.
Puts the defences of truth, honest opinion and publication on a matter of public interest into statutory form (sections 2, 3 & 4)
The corresponding common law defences (previously called: justification, fair/honest comment and the Reynolds defence) are abolished. This seems the most far-reaching reform of all.
However it seems that the sections are intended to replicate / simplify the law as it was, not change it. As with all the other sections, time will tell whether the way the judges interpret the Act in specific cases marks any real shift from the approach to date. It is unlikely that much will change in effect.
Sets out a new process dealing with online posts which will provide a defence to website operators if they are not the author of the post and the identity of the actual posters is apparent to complainants (section 5)
Regulations will be passed to bring this into effect.
Makes additions to the privilege provisions of the Defamation Act 1996; in particular, extending the protection of privilege to peer-reviewed scientific and academic journals (sections 6 & 7)
The latter responds to lobbying by the scientific community
Establishes a "single publication rule" (section 8)
This is a significant provision, changing the approach to online material: it will be deemed published once when originally posted (not each and every time it is accessed by readers), the effect being that the 1 year limitation period will run from the date of that first posting.
Limits the English court's jurisdiction in defamation actions against those not domiciled in the UK or another EU member state (section 9)
The court will have to be 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 in respect of the statement.
The aim is to simplify the rules governing libel actions with little real connection to this country. The approach is similar to the one the judges had worked out already, to deal with so-called "libel tourism"
Provides that libel trials shall be without a jury unless the court orders otherwise (section 11)
This in fact enacts the trend in the judges' approach over the last few years
Gives the court new powers where it has given judgment in a defamation action, to make an order compelling (1) publication of a summary of the judgment; and / or (2) removal of defamatory statements from a website or from distribution (sections 12 & 13)
Since the minority of defamation complaints result in judgment (most cases being settled) this may not be of enormous practical effect.
The changes which the Act will bring in will not signal a massive or radical change of direction in the way defamation law works in practice. But codification of significant elements of the law, and the simplification of the rules in some areas, may lead to an important shift of emphasis away from technicality towards more straightforward resolution of claims and hence the reduction in complexity and cost which has discredited English libel law hitherto.
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