The Defamation Act 2013 came into force in England and Wales on 1 January 2014. It introduces a new requirement for companies and individuals to demonstrate "serious harm" to their reputations in order to establish a claim. In respect of businesses and other bodies that trade for profit, this requires proof that the statement has caused, or is likely to cause, "serious financial loss". The Act also implements new measures to address concerns over libel tourism and forum shopping. Where a libel action is brought against a person who is not domiciled in the U.K., an E.U. member state or a state which is a party to the Lugano Convention (Switzerland, Iceland and Norway), a court will not have jurisdiction unless it is satisfied that, of all the places in which the statement was published, England and Wales is clearly the most appropriate forum to bring an action. The Act, therefore, effects significant changes to English defamation law designed to enhance the interests of defendants and to promote free speech.
Background
Historically, English defamation law has been criticised for being antiquated, too "claimant friendly" and costly in contrast to the laws of other countries. In particular, where a claimant establishes damage to its reputation, by showing that it had been lowered in the estimation of right-thinking or reasonable members of society, the onus of proof shifts to the defendant to show that the offending statement was true or to make out another defence. These problems were exacerbated by the explosion in internet publications because English law presumes that a statement is published where it is read. As a result, it was possible to bring a defamation claim in the English courts in respect of a website accessed in England, even where the website was hosted abroad, the parties involved were all based abroad, and the content was intended for viewing primarily by an overseas‟ audience. Moreover, a statement was deemed to have been "published" every time it was accessed via the internet, giving rise to potentially indefinite liability of authors, publishers and website hosts in respect of online publications.
Key Provisions
The new Act introduces the following key provisions addressing a number of the above criticisms and shifting the balance away from the right to reputation back towards the promotion of free speech:
1. Requirement to show serious harm. A claimant bringing an action for defamation will now have to prove that the statement caused, or is likely to cause, "serious harm". The reputation of a business or other body that trades for profit is not seriously harmed unless the statement has caused "serious financial loss". The majority of claims against individuals are unlikely to be impacted by this new threshold test because most statements which are litigated are likely to cause serious harm and the real issue is the availability of a defence. The position is different in respect of corporate claimants, where damage to reputation will not necessarily translate into serious financial loss, including, for example, where any damage is quickly abated by a retraction, clarification or apology. It may also be difficult for claimants to establish causation in the face of other possible explanations for the financial loss, including market forces and general economic downturn. Where possible, therefore, publishers should be careful to distinguish between the position of companies and their management in order to reduce the risk of a successful claim.
2. Libel tourism and forum shopping. The new Act provides that a court does not have jurisdiction to hear and determine a defamation action unless it is satisfied that, out of all the places where the statement has been published, England and Wales is the most appropriate forum to bring the claim. This provision applies to all defamation actions brought against persons who are not domiciled in the U.K., another E.U. member state, Switzerland, Iceland or Norway. It is anticipated that it will reduce the number of claims brought against foreign newspapers and magazine publishers by claimants seeking to take advantage of England as a claimant friendly jurisdiction, in particular where distribution of the publication in England is relatively small. An important consideration, however, will be the place where the claimant has the most established reputation. The new provision should also address the mischief of claimants seeking to limit their claims to plead only damage occurring within England and Wales as a means of anchoring jurisdiction.
3. Single publication rule. The limitation period for defamation claims is one year from the date of first publication. Previously, every publication of defamatory material gave rise to a separate cause of action, including individual website hits‟. The new Act establishes a single publication rule preventing a claimant from bringing an action in relation to publication of the same material by the same publisher after the expiry of the one-year limitation period, unless the manner of the publication is materially different. This provision only assists a person who makes an initial publication and subsequently re-publishes the same material. It does not apply, for example, to a second person who publishes the same statement for the first time. Accordingly, the new single publication rule will not assist individuals re-publishing old material or website links to it.
4. Changed defences to defamation. The new Act abolishes the common law defences of justification, fair comment and the Reynolds defence covering the publication of material reasonably believed to be in the public interest. Instead, it replaces them with new defences of "truth", "honest opinion" and "publication on a matter of public interest" (also known as the "responsible publication" defence). Although broadly similar to the previous common law, the new honest opinion defence removes the requirement for the opinion to be on a matter of public interest. Similarly, the new responsible publication defence provides that the court should have regard to all the circumstances of the case, as opposed to limited factors set out in the Reynolds judgment. The court is also now required to make allowance for editorial judgment as it considers appropriate. The new Act also revises the defences of absolute and qualified privilege, including providing new protection for scientists and academics publishing in peer-reviewed journals.
5. Specific defence for website operators. Where an action is brought against the operator of a website in respect of a statement published on the website, the Act creates a new defence for the operator to show that it did not post the defamatory statement. This defence is defeated, however, if the operator acts with malice, or, if the claimant gives the operator notice of complaint in relation to a defamatory statement (where it cannot identify the person posting the statement) and the operator fails to respond adequately. This defence is supplemented by the Defamation (Operators of Websites) Regulations 2013, which also came into force on 1 January 2014 and provide a statutory procedure for notice and take down of allegedly defamatory internet postings. Significantly, in order to rely upon the defence, a website operator may be required to contact the person posting the statement within 48 hours, and failing that, to remove the statement within the same period.
6. Actions against secondary publishers. The new Act also affords greater protection to secondary publishers, such as booksellers and social media hosts, by removing the court‟s jurisdiction to hear and determine defamation actions against them, unless it is not reasonably practicable for an action to be brought against the author, editor or publisher. However, it is not clear what constitutes "reasonably practicable" for these purposes or the extent to which a claimant would be expected to first pursue court proceedings in order to obtain the identity of an author, editor or publisher. Further, if the author, editor or publisher is located overseas, requiring the service of process out of the jurisdiction, then country specific considerations may also apply.
Articles arrive in my inbox via mailing service. ***GLOBAL***Articles arrive in my inbox via mailing service. GO LIVE
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.
