Reed Smith Client Alert

The 1st of January – a time for resolutions, for good intentions and for kind words. On 1 January 2014 these resolutions are more apt than ever as the long-awaited Defamation Act 2013 finally comes into force. So is it time to step away from Twitter? Have the thunderclouds broken over the long summer holiday of libel tourism in England? And following the intense scrutiny of the press during the Leveson Inquiry, are we finally going to give them a break? Or is the new act, to all intents and purposes, the old one dressed up in the Emperor’s new clothes to satisfy a political agenda?

It’s been a slow legislative road to get to this point, a journey of almost four years since the Ministry of Justice first published a draft Defamation Bill for consultation in March 2011. However, when put into context (the last Defamation Act came into force in 1996, 10 years before Twitter was even founded) it was probably a necessary one. Where once the main perpetrators of defamatory statements were the print press, today anyone can find an audience for their thoughts, spoken or written; and these thoughts can be proliferated across the world in milliseconds via the Internet. So, whilst the judiciary has been carving its own path through the new electronic landscape, it was decided that a new act was required to silence the government’s critics.

Form over Substance?

The critics’ calls for change concerned not only the supposedly antiquated legislation and common law in this area, but also the reported ease with which claimants could bring actions in this country, so called “libel tourism”. At 17 sections long, the Act appears to change a great deal but, once examined, it could be argued that only the form and not the substance of the law has been upgraded.

Changes for the Claimant

If you are to believe the lobbyists, our courts are chock-a-block with libel tourists bringing actions for defamation in the English courts. And there may be some truth in their outrage, as the upshot of this tourism is that some U.S. states have been driven to pass specific laws to prevent “unreasonable” libel rulings made in British courts from infringing on their own rights to freedom of speech. A quick glance at previous case law is a Forbes List of the foreign rich and famous, one such case qualified to be heard, and succeeded, after only 23 copies of a book were sold in this country. Whilst the comparatively wide jurisdiction of the English courts has been welcome bread and butter for lawyers, this practice has been branded embarrassing and disgraceful by politicians and watchdogs.

Section 9 of the new act seeks to address this problem, ensuring that a court cannot hear the case of a defendant who is not domiciled in the UK or another EU or Lugano Convention State unless it is satisfied that of all the places publication has taken place, England and Wales is clearly the most appropriate. Whilst this new provision does not implement any de minimus level of publication, it is intended that the court will look holistically at publication, rather than focus on the damage which has occurred in this jurisdiction. And indeed, in reality, the courts were already taking this approach.

Defamation is an emotive area of law. Most people and/or entities feel aggrieved and upset if someone says something about them that they don’t like, but is that sufficient grounds to sue? That depends. Previously the court has relied on the concept of proportionality to assess whether a claim has any merit. The new act introduces the requirement that a statement must have caused (or be likely to cause) serious harm to the claimant’s reputation (section 1(1)). Section 1(2) adds the requirement that where a business is the claimant, serious financial loss must be caused, or likely to be caused, for an action to succeed. This new legislative requirement sets the test in stone, but as with the new section 9, it does not offer any tangible yardstick for the judiciary to work against. Therefore it is difficult to see that the courts will approach cases in a different manner to previously.

Unlike most court claims, the limitation period for a defamation action is one year. This short period reflects the transient nature of the damage done by a defamatory statement. However, the new act seeks to reduce a claimant’s ability to sue even further by introducing the “single publication rule” at section 8. Previously, each time a defamatory statement was published it was treated as a new publication, and so a new limitation period began to run. This allowed claimants more bites of the cherry, particularly in the context of an Internet publication where each “hit” on a webpage was treated as a new publication. The new act takes a more realistic approach, preventing action being taken against a publisher more than a year after the content is first published. However, section 8 does not interfere with a claimant’s right to claim against an additional defendant if the defendant republished the content, or against the original defendant/publisher if they published the content in a materially different way.

Linked to the section 8 restriction on claimants, section 10 of the new act prevents claimants from bringing a defamation action against secondary publishers (e.g., booksellers), except where it is not reasonably practicable to bring an action against the author, editor or publisher.

Section 11 abolishes the presumption in favour of a jury trial, a move which the judiciary was already starting to make in practice. In addition, section 12 provides the court with the power to order a summary of its judgment to be published. The wording of the summary as well as the timing and manner of its publication are to be agreed by the parties. In the absence of agreement the court will give directions. Publication of a judgment in a successful claim can be a powerful remedy for a claimant and can go a long way to rectifying the damage done by the defamatory statement.

Section 13 enables the court to order a website operator to remove a defamatory statement posted on its site, but only if the operator cannot take advantage of the new defence under section 5 of the act (explained below). Section 13 also allows the court to order any person who was not the author, editor or publisher of the defamatory statement to stop distributing, selling or exhibiting material containing the statement.

Changes for the Defendant

The previous common law defences of “justification” and “fair comment” were confusing misnomers which added unnecessary mystique to this area of law. Section 2 of the new act replaces the defence of “justification” with the much more straight-forward statutory defence of “truth”. However, the defence is demonstrably the same and simply requires the defendant to show that the imputation conveyed by the statement complained of was substantially true. Likewise, section 3 replaces the previous common law defence of “fair comment” with “honest opinion”. Once again this “say what you see” defence is largely self-explanatory, requiring the defendant to show that the statement was an expression of opinion and not fact, that the statement indicated what the opinion was based on, and that the opinion was one which an honest person could have held, based on the facts in existence at the time. One crucial change to be noted by defendants is that the statement no longer needs to be based on a matter of public interest to
take advantage of this defence.

As mentioned at the start of this article, defamation claims were historically aimed at the press and, as a result, various attempts to create ad hoc defences for journalists evolved through case law. In 2001 Reynolds v Times Newspaper Ltd & Ors conceived the “Reynolds defence” to protect journalists reporting on matters of public interest in a good faith and responsible way. In essence, the new act codifies the Reynolds defence (whilst at the same time formally abolishing it) under section 4: Publication on matter of public interest. This section offers a defence where the defendant is able to show that the statement complained of was a matter of public interest and the defendant reasonably believed that publishing the statement was in the public interest.

An associated defence under section 6 provides a defence for publications in scientific or academic journals. The defence deems such publications as privileged and therefore outside the scope of a defamation claim if the publication was independently reviewed by the editor or a peer.

Perhaps most importantly, the new act clarifies and extends the defences afforded to website operators. Previously, the 1996 Act afforded protection to website operators who were not the author, editor or publisher of the statement, who took reasonable care in relation to its publication and did not know, and had no reason to believe, that what they did caused or contributed to the publication of a defamatory statement. However, in practice Internet service providers found it difficult to meet the required tests of showing reasonable care and/or that they had a lack of knowledge. In an attempt to clarify the situation, section 5 of the new act provides that where an action is brought against the operator of a website in respect of a statement posted on a website, a defence can be raised if it can be shown that the operator did not post the statement on the website. However, the defence will be defeated if the claimant can demonstrate that it was not possible to identify the original poster of the statement, that they gave notice of the complaint to the operator, and that the operator failed to respond.

In order to further clarify the issue, The Defamation (Operators of Websites) Regulations 2013 were published in October 2013 and will come into force on 1 January 2014, at the same time as the new act. The Regulations set out the information required to be included in notices of complaint to the operator. The necessary information includes a contact address, the meaning that the complainant attributes to the offending statement, the factual inaccuracies in the statement, and confirmation that the complainant has been unable to identify the poster of the statement. Once submitted, the Schedule to the Regulations provides that an operator must act within 48 hours to either take down the offending statement if the operator has no means of contacting the poster electronically, or if it does, send a copy of the complainant’s notice and a warning to the poster that the statement will be removed unless the poster responds in writing within five days stating whether they object to the removal or not. If the poster objects they must provide contact details, which are then to be passed on to the complainant within 48 hours. The consequence of this cumbersome and slightly tortuous process is that a defamatory post made by a poster identifiable by an operator will remain online for at least five days before being taken down, and if the poster objects to it being taken down, this period could be much longer. Where an individual’s, or a business’ reputation is on the line and being defamed online this is significant length of time and the scope for irreparable damage is huge.

A Brave New World, or a Typed Up Old One?

Cynics may write off the new act as a simple attempt to placate the critics and show willing, but if this is correct, how can such a transparent ploy expect to succeed? As we have found, the new act breaks no new ground and in many respects simply codifies existing common law and practice. However, taking a more measured and positive approach to this act, this codification does clarify and confirm areas which, in the past, have been murky and overly complicated. The defences now do exactly what they say on the tin and, whilst perhaps not as instantaneous as the technology we have all come to rely on, section 5 does provide complainants with a clear and precise procedure for take down of defamatory Internet posts. So, whilst the new act won’t cause many of us to change our habits, a good New Year’s resolution remains: ‘If you can’t say anything nice, don’t say anything at all’.

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Client Alert 2013-343