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Defamation Dragged into the 21st Century?

About The Author

Chris Bridges (Executive Editor)

Chris is an IT and Data Protection solicitor at a top 20 full service firm and the founder of Keep Calm Talk Law. He also contributes to Computers and Law and other sector specific publications.

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The 21st Century is quickly becoming one of mass publication. The number of people connected to the internet via smart phones and high-speed broadband connections is rapidly increasing; there is barely a minute of the day we do not have the internet at our fingertips. Consequently, social media is booming, allowing anyone with an internet connection and basic computer literacy to directly publish content for the world to see, something that has historically been limited to newspapers and television broadcasters. Whilst historically the public would only likely be open to claims of slander (impermanent defamation, such as speech), the majority of people have a means to assert their beliefs in a permanent, easily accessible form, opening them to claims of libel.

Throughout the world, freedom of speech is becoming king, and nations that attempt to dampen freedom of speech are quickly criticised by other nations and the masses that now have platforms to publish to the world.

This revolution in social norm over the last decade has rendered existing defamation law outdated, and it is therefore unsurprising that defamation has just recently been the subject of statutory reform.

The Defamation Act 2013 gained royal assent on 25th April, and came into force 2 weeks ago on 1st January. Given technological advancements providing publication platforms to the masses and the advancement of freedom of speech as a core value, it is unsurprising that the Act aims to streamline defamation, reducing the number of claims, and provide additional defences. This brings the previously claimant-friendly principles more into line with other nations.

‘21st Century Changes’

Section 1 of the Act introduces a requirement of “serious harm” to be caused for a statement to be considered defamatory. While this change may seem small, it no doubt was made in the hope that it would reduce the initial number of claims. However, the impact of this small change is unlikely to be large; in most cases parties would only consider litigation if they believed the libel or slander had caused them some kind of serious harm.

Section 1 also states that where the claimant is a for profit organisation, there is only harm to the reputation of that body if the harm has or is likely to cause serious financial loss. This seems like a difficult test to satisfy, and in the majority of circumstances I believe it would be unlikely for a single defamatory comment to cause such extensive damage. However, given the power of social media, who knows? Could an ill-informed tweet that goes viral do some serious damage? Quite possibly. However, does a ‘Retweet’ or a Facebook ‘share’ constitute a re-publication of the offending material, thereby reducing the original poster’s liability? After all, the original poster may have had no idea his post would be quite so viral, and may have no means to stop it once it has started.

However, these subsections together ensure a claimant cannot bring a defamation action for ‘petty’ damage, which in the vast majority of cases will be clear.

Section 2 of the Act does away with the existing defence of justification in favour of a ‘truth’ defence. This defence allows the defendant to defeat the claim if they can “show that the imputation conveyed by the statement complained of is substantially true”. This amendment appears to make little difference, and the courts may well choose to continue applying justification cases to truth defences.

Section 3 abolishes the defence of fair comment, replacing it with an easier-to-establish defence of honest opinion. Whereas fair comment had to be in the public interest, an honest opinion does not. Furthermore it seems the defendant need not know at the time of publishing the facts that a reasonable person might base the opinion on. Additionally, fair comment could be defeated if malice was shown; whereas honest opinion can only be defeated if it is shown the defendant did not hold the opinion, which you can assume would be hard to prove unless the defendant had publicised this elsewhere. Importantly, under honest opinion, a publisher will have a defence if they could reasonably believe the author did in fact hold the opinion.

Section 4 abolishes the common law “Reynolds Defence” in favour of a defence of ‘publication on a matter of public interest’. Unlike the Reynolds defence, the defence under section 4 appears to be subjective; if the defendant reasonably believed the statement to be in the public interest, this will be a defence. It is however open for the courts to include an objective element in a test that they devise therefore the actual implications of this amendment remains to be seen. An entirely subjective defence would likely make this defence open to abuse. Whilst a celebrity’s plastic surgery may be considered to be in the public interest by some tabloid newspapers, many onlookers will likely not share the same view. 

Section 5 of the Act introduces a significant defence for the operators of websites where they can show they did not post the statement complained of as long as it was possible for the claimant to identify the person who posted the statement. The defence will fail where the claimant gave notice of complaint to the operator and the operator failed to act appropriately.

Furthermore under Section 10:

a court does 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.

This potentially provides a defence for broadcasters, printers and other publishers that often have no control over what is published. The final clause of the above, however, leaves claims open where it is not reasonably practicable to bring an action against the author, editor or publisher. This could perhaps be where it is not possible to identify the author, editor or publisher.

However, even if a defendant is held not liable under Section 5 or 10, the court may still make an order for the publication to be ceased under Section 13. In the case of a website this would require removal, and in the case of other mediums, no further broadcast or distribution.

Identity may however prove to be a key barrier to utilising the defences found in Sections 5 and 10. What constitutes sufficient identifying information? Many websites may only hold a name and an email address, and perhaps the I.P. address of the poster. However, what if a false name or email address was supplied, or the I.P. address could not be traced to an individual due to the use of a proxy or internet café? Do website operators have any defence against anonymous posts where only an I.P. address is collected by the website operator?

I fear that legislation has not gone far enough in this respect. Whilst publishers (in the context of websites, the operator) may have a defence under the existing Regulation 19(a)(ii) Electronic Commerce Regulations 2002 which provides defence where the ‘service provider’ has acted “expeditiously to remove or to disable access to the information” following notice, with no clear defence they may immediately remove such posts or comments in fear of litigation where in actual fact the statements caused no serious harm.

Under Section 11, rather than trial by jury being mandatory in defamation cases, trial by jury is now decided at the discretion of the court. This is likely an attempt to reduce the duration of defamation hearings, thereby reducing costs. After all, defamation proceeding costs in England and Wales under the old system were said, according to an Oxford report, to be 140 times the European average. Many fear such high costs encourage innocent defendants to settle outside court, as even if they win they may not recover all costs, and will never recover the lost time and energy. This is therefore a key amendment that should not be overlooked.

‘Libel Tourism’ Counter Measures

The historic claimant-friendly nature of English defamation law has given rise to what has come to be known as “libel tourism”, where foreign parties seek to litigate in UK courts where there claims have been excluded elsewhere.

The act therefore takes a direct shot at libel tourism by attempting to exclude claims that have little or no connection to the UK. Perhaps the most infamous example of this is the Ehrenfield case. Ehrenfield is a New York based author who in 2003 published a book ‘Funding Evil’ regarding the funding of terrorism, implicating Saudi businessman Khalid bin Mahfouz. Despite only 23 copies of the book having been sold in the UK, Mahfouz was awarded extensive damages by the UK High Court.

The greatest weapon to combat Libel Tourism is found in Section 9 of the Act. Subsection 2 states:

A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is 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.

This provision provides some scope for court discretion, and I suspect it was deliberately designed to do so. There are no defined factors set out within the act as to when England and Wales should be considered “the most appropriate place in which to bring an action in respect of the statement”. However, I believe cases such as the Ehrenfield case would certainly struggle to satisfy any test the court applies in this respect due to the lack of books sold in the UK.

As defamation is concerned with the claimant’s reputation, a sensible test would be how significant the claimant’s reputation was within the UK. If the claimant had little to no following within the UK, it would be nonsensical that they could bring an action for defamation in UK courts.

Section 7 also goes some way to prevent libel tourism by extending the statutory privilege for reports of UK and EU proceedings to equivalent proceedings anywhere in the world. This includes (subject to different levels of privilege): court proceedings, legislatures, conferences, public meetings, general meetings of listed companies and associations.

Other Changes Include:

  • The introduction of a single publication rule (section 8). This should prevent indefinite liability where a publisher publishes material repeatedly that is “substantially the same”. (E.g. websites and television broadcasts).
  • Granting power to the courts to order the defendant to publish a summary of the court’s judgement where the claimant is successful (Section 12). This should be as agreed between the parties, however if the wording or form of the publication cannot be agreed upon, the court has the power to decide.

These reforms certainly drag England and Wales defamation law into the 21st Century. However, could it have been done better? I think so. The legislation leaves several key questions unanswered that could deter publishers from allowing un-moderated free speech. Whilst it is certainly no bad thing that publishers be sensible about what they allow to be published through their mediums, there is a careful line to be drawn between sensible moderation and over-cautiousness. If the legislature truly wants to enable free speech, further reform to address the concerns highlighted above may be needed. It must however be conceded that many publishers are likely to always moderate submissions to avoid their own reputation being tarnished, and to avoid upsetting readers where inappropriate or explicit language is used.

Finally, considering the widespread use of social media and other ‘to-the-masses’ self-publication tools, it may have been prudent to consolidate the law on defamation into one clear statute. As it stands defamation law is spread between the common law and several statutes, most notably The Defamation Act 1952, 1996 and 2013.

 Whilst many large corporations can afford legal counsel to advise on what will and will not be considered defamatory, small to medium businesses and the many individuals that now have access to mass publication tools cannot. With this in mind, it is important that the layman can easily understand his basic legal position, without formal legal advice.

What do you think of the reforms made by the Defamation Act 2013? Comment below or tweet us @KeepCalmTalkLaw.

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Tagged: Commercial Law, Defamation, Human Rights, Tort Law

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