These are the main provisions of the Defamation Bill introduced into the House of Lords by Lord Lester of Herne Hill.
The Bill is arranged under a series of seven headings: Defences, statutory privilege, publication, cause of action, trial by jury, evidence concerning proceedings in Parliament, and miscellaneous and supplemental, and has three schedules.
- September 4, 2020
- September 2, 2020
- August 14, 2020
Clause 1: Introduces a defence of responsible publication on a matter of public interest. This seems to be in effect a statutory codification of the Reynolds defence.
A defendant has a defence by showing that the words or matters complained of were published for the purposes of or in connection with discussion of a matter of public interest; and that he or she acted responsibly in making the publication – and it applies regardless of whether the publication contained statements of fact or inferences or opinions.
A court deciding whether the defendant has acted responsibly must have regard to all the circumstances of the case, which may include a number of factors, including the nature of the publication and its context; the nature and seriousness of anything alleged about the claimant; the information the defendant had before publication; what steps, if any, the defendant took to verify what was published; if appropriate, whether the defendant gave the claimant an opportunity to comment before publication; whether there were factors supporting urgent publication; and the extent of the defendant’s compliance with any relevant code of conduct or other relevant guidelines.
It must also consider, where a publication reports accurately and impartially on a pre-existing matter – eg, that there is a dispute between two parties – whether a defendant may be regarded as acting responsibly to the extent that the court is satisfied that it is in the public interest for the existence of that matter, and anything reported in connection with it, to be the subject of a report or series of reports.
But it deciding this issue, the court may disregard any question as to the truth of anything reported in connection with a pre-existing matter.
Clause 2: Changes the name of the fair comment defence to “honest opinion”.
Clause 3: Details the conditions required for a defence of honest opinion. The words must relate to a matter of public interest, and must be such that an ordinary person would reasonably consider them to be an opinion.
The third condition is that, at the time of publication, there must have been one or more facts; or material falling within the responsible publication on matters of public interest defence or material covered by statutory privilege; or any material which was otherwise protected by privilege.
The fourth condition is that an honest person could form the opinion on the basis of the facts or material the defendant used to satisfy the third condition.
If the fourth condition is met, no account can be taken of anything a defendant did not show; or of whether the defendant first learned of the facts or material before or after publication; or whether the facts or material were or were not included in the publication.
The defence fails if a claimant shows that the defendant did not hold the opinion in question.
Clause 4: Changes the name of the justification defence to the defence of truth.
Clause 5: Says a defence of truth succeeds if the words or matters complained of are substantially true.
A defendant may show that either the meanings alleged by the claimant are substantially true, or that the words complained of have lesser meanings, each of which is substantially true.
The defence will not fail “because a particular meaning alleged by the claimant is not shown as being substantially true, if that meaning would not materially injure the claimant’s reputation having regard to the truth of what the defendant has shown to be substantially true”.
If two or more distinct allegations are made, and the defendant cannot show the truth of every allegation, the defence will still succeed if anything not shown to be true does not materially injure the claimant’s reputation, given the truth of the remaining allegations.
Clause 6: Under Statutory privilege, Clause 6 gives absolute privilege to fair, accurate and contemporaneous reports of proceedings in a court sitting in public.
Clause 7: Extends absolute privilege to cover fair and accurate reports of proceedings in Parliament, or of anything published by or on the authority of Parliament; and a fair and accurate copy of, extract from or summary of anything published by or on the authority of Parliament.
A court must stay any proceedings when a defendant shows that they relate to the publication of anything within those categories of material, and where the proceedings seek to prevent or postpone the making of any such publication.
The provisions also cover the Welsh Assembly and Northern Ireland Assembly.
Clause 8: Details other reports protected by qualified privilege, which are listed in Schedule 1. It maintains the current distinction between publications which are protected by qualified privilege, and which are protected by qualified privilege subject to explanation or contradiction.
Clause 9: Headed responsibility for publication, gives a defence against a libel action for anyone whose involvement in a publication is as a facilitator or as a broadcaster in a live programme in circumstances in which it was not reasonably foreseeable that the words or matter would be published.
It also introduces a requirement that a defendant – apart from a primary publisher – must be given 14 days’ notice in writing of a complaint and the opportunity to remove the words or material complained of.
Clause 10: Introduces a single publication rule – overturning the 1849 case of Duke of Brunswick v Harmer, under which it has been held that every re-publication of an allegedly defamatory statement amounts to a new publication and a new cause of action.
The Bill proposes that the first date of publication for material made available to the public or a section of the public is the date from which a cause of action accrues.
Clause 11: Introduces a requirement that any company which wishes to sue for defamation must first show that publication of the words or matter involved has caused or is likely to cause it “substantial financial loss”.
Clause 12: Places a requirement on a court to strike an action out unless a claimant shows that the publication has caused “substantial harm” to the claimant’s reputation, or that such publication is likely to cause such harm.
However, the court may also allow a court to decide that it would not be in the interests of justice to strike out such an action.
Clause 13: Covers cases in which a court is satisfied that the words or matter complained of have also been published outside the jurisdiction, and says: “No harmful event is to be regarded as having occurred in relation to the claimant unless the publication in the jurisdiction can reasonably be regarded as having caused substantial harm to the claimant’s reputation having regard to the extent of publication elsewhere.”
Clause 14: Reverses the presumption that there should be a trial by jury in defamation cases.
Clause 15: Gives a court the power to order a trial by jury in a defamation case if satisfied that it is in the interests of justice to do so.
Clause 16: Gives the Speaker of either House of Parliament the power to waive, in writing, the “relevant protection” which prevents proceedings in Parliament being impeached or questioned in any court or place outside Parliament in as much as they would relate to proceedings in an action for defamation.
If the relevant protection is waived, is ceases to apply to prevent evidence being given, questions being asked or statements, submissions, comments or findings being made in those proceedings; and none of those things will be regarded as infringing the privilege of either House of Parliament. But the provision has no effect in relation to the protection given to individuals from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament.
Schedule 1 covers qualified privilege. Part 1 lists statements having qualified privilege without explanation or contradiction; Part 2 lists those which are privilege subject to explanation or contradiction, and Part 3 details supplemental provisions.
Schedule 2 details minor and consequential amendments, and Schedule 3 details repeals.