Libel bill analysis: It’s a good start, but much more needs to be done

The draft defamation bill doesn’t directly address the punitive and intimidating cost of defending libel actions, concerns over a back-door privacy law or the issue of super-injunctions.
And there is also nothing in there to stop corporations suing for libel as had been hoped.
But the proposals tabled do go a long way towards easing the UK’s unenviable reputation as one of the toughest legal regimes in the world for journalists and publishers when it comes to libel.
Consultation is now open – and it is up to journalists and publishers to make the case as strongly as we can for ways in which the law can be improved.

Here are the provisions of the Draft Defamation Act in a nutshell:

(Read the full bill here, as well as details about how to respond to the public consultation which ends on 10 June.)

Substantial harm

All claimants must show that the publication has caused or is likely to cause substantial harm to the claimant’s reputation. (Libel is currently actionable without proof of actual damage.)
This could be a big help to publishers where companies are suing because actual damage is difficult to prove.

Responsible publication on a matter of public interest

This should firm up the current Reynolds defence which as developed by case law and provides protection for investigative journalism which is responsibly carried out.

A statutory defence of truth

Justification is already a defence in libel, this clause would replace that with a new statutory defence.

A statutory defence of honest opinion
This new defence could be used where the statement is one of opinion, on a matter of public interest, that an honest person could have held on the basis of:
a) a fact which existed at the time the statement complained of was published;
b) a privileged statement which was published before the statement complained of.

According to media lawyers Taylor Wessing: “This is hopefully a big liberalisation of the defence formally known as fair comment. It has been notoriously hard to rely on and there has been confusion about what a defendant must demonstrate in terms of fact supporting the comment.
“Here, provided a statement is opinion on public interest, it will be sufficient if a fact existed at the time the statement complained of which support the opinion in question.”

Privilege

Includes proposals to extend absolute privilege to cover proceedings in any court in a country or territory outside the UK.
It crucially extends qualified privilege to fair and accurate reports of proceedings of a scientific or academic conference, and to copies, extracts and summaries of matter published by such conferences.

Single publication rule

This would place a one-year limit on suing over online articles. Currently each time such an article is downloaded it counts as a new publication and the clock starts ticking again for defamation purposes.

Libel tourism

“The court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that England and Wales is clearly the most appropriate place in which to bring an action in respect of the
statement.”
This would tackle the situation whereby claimants pick the UK as the best place to sue, even thought the article was mainly published elsewhere. So where a statement is published 100,000 times in Australia and 5,000 times in England, the court would tell the claimant to sue in Australia not the UK.

Presumption of trial without jury

A reversal of the current situation. According to Taylor Wessing: “It would mean that issues which could otherwise have been decided by a judge at an early stage (such as meaning) could be resolved before trial. For many reasons, the reversal of the presumption is very likely to reduce costs for all parties in a defamation action.”

Topics in this article : Media Law