UK DEFAMATION ACT 2013

• Citation: (2014) 26 SAcLJ 98
• Date: 01 December 2014
• Published date: 01 December 2014

Key Changes

The much awaited new legislation affecting English defamation law received Royal Assent in April 2013, ushering in changes substantive as well as cosmetic. Some of the substantive changes are radical and reflect the increasing emphasis on the right of freedom of expression. This comment deals with the key changes brought about by the new Defamation Act 2013.

I. Background

1 The UK Defamation Act 2013,1 like its predecessor Acts of 19522 and 1996,3 reforms aspects of the law of defamation in England.4 The draft Bill5 was presented to the UK Parliament in March 2011, and a Consultation Paper6 was also issued. The responses from this public consultation were collated in a summary of responses.7 A joint committee of the House of Lords and the House of Commons (“Joint Committee”) scrutinised the Bill and gave its report8 (“Joint Committee Report”) in October 2011. Four months later, the Government's

response9 to the Joint Committee Report was presented to Parliament. On 25 April 2013, the Defamation Act 2013 received Royal Assent.10

This note explains and comments on the key11 aspects of the Act, namely:

(a) the requirement of “serious harm” to reputation in order for a statement to be defamatory;

(b) replacement of the defence of justification with the defence of “truth”;

(c) replacement of the defence of fair comment with the defence of “honest opinion”;

(d) replacement of the Reynolds privilege with the defence of “public interest”;

(e) responsibility of website operators;

(f) defence of privilege for statements in scientific and academic journals;

(g) protection of “secondary” publishers; and

(h) publishing of summary of court judgments (in claimant's favour).

2 Before we look at the provisions, a few preliminary points should be noted. First, whilst some of the provisions affirm (and merely codify) the common law position, others bring about a change in the law.12 Secondly, in the process of the Bill becoming an Act, there has been significant change in the wording of some of the provisions, in response to the public consultation and the Joint Committee Report. Thirdly, the last four aspects mentioned above are new matters which

were not in the Bill but which surfaced in the process. Finally, it should be noted that both the Joint Committee and the Ministry of Justice were fully aware of the challenge of striking a fair balance between freedom of speech and the protection of reputation.

3 The changes should be borne in mind by lawyers and judges in common law jurisdictions as they read or refer to future English judgments. These developments are also indicators of possible legislative change in other jurisdictions.

II. Requirement of serious harm

4 Section 1 of the Act provides that a statement is not defamatory unless its publication has caused or is likely to cause “serious harm” to the reputation of the claimant. The reader's instinctive reaction is to wonder if this marks a shift in the philosophy and mindset of the law towards defamation. The Explanatory Notes13 at para 11 explain that the section is merely building on the judicial sentiment expressed in cases such as Thornton v Telegraph Media Group Ltd14 and Cammish v Hughes15 (“Cammish”) that there must be a threshold of seriousness and Jameel v Dow Jones16 that there needs to be a real and substantial tort. In Cammish, Arden LJ stressed the need, in defamation suits, for the “threshold test of seriousness” to be satisfied, adding that “[t]he law does not provide remedies for inconsequential statements, that is, of trivial content or import”.17

5 As one reconciles oneself to this new thinking, a natural follow- up question would be: how is “serious” to be defined, and where should the line be drawn between a disparaging statement which is serious and one which is not serious?18 The Bill in fact used the term “substantial harm”. The Joint Committee recommended replacing this with “serious and substantial harm”. Clearly, whatever the term used, be it “serious” or “substantial”, or other alternatives such as “significant” or “material”, there will be problems in definition and application, especially along the borders.

6 Practical problems aside, the real objection to the new provision is that the new paradigm appears to be that it is acceptable to defame a person so long as the harm is not serious. Is one permitted to say, for example, that another person is “slightly corrupt” or “somewhat

arrogant”? Also, is seriousness assessed in terms of the nature of allegation or the extensiveness of harm or both?19 It would be interesting to see how English courts would grapple with these and other difficulties.20

7 Where the claimant is a corporation or an institution which trades for profit, the section provides that there is no serious harm unless the statement has caused or is likely to cause serious financial loss.21

III. Defence of truth

8 Section 2 abolishes the defence of justification22 and replaces it with a defence of truth.23 Section 2(1) says that it is a defence for the defendant to show that the imputation is “substantially true”.24 The defence apparently applies to statements with single imputation25 as well as statements with multiple imputations. Where a statement conveys two or more distinct imputations, s 2(3) explains:26

If one or more of the imputations is not shown to be substantially true, the defence … does not fail if, having regard to the implications which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant's reputation.

Apart from a label change, the section basically codifies the common law position that the defendant only needs to establish the essential truth of the sting of the libel.

IV. Defence of honest opinion

9 The displacement of the defence of fair comment with honest opinion results in more than a name change. According to s 3, the defence avails if the defendant satisfies four requirements:

(a) the statement was a statement of opinion;

(b) the statement indicated, in general or specific terms, the basis of the opinion;

(c) the opinion was one which an honest person could have held on the basis of

(i) any fact which existed at the time of publication; or27

(ii) anything asserted to be a fact in a privileged statement; and

(d) the defendant actually held the opinion.

Requirement (d) does not apply if the publisher of the statement was not the author; in such a case, however, the defence does not avail if the publisher knew or ought to have known that the author did not hold the opinion.28

10 Requirement (b) codifies the position taken by the UK Supreme Court in Joseph v Spiller,29 which rejected Lord Nicholls' view in Cheng v Tse Wai Chun30 that the comment must identify the subject matter with “sufficient particularity” to enable the reader to form his own opinion as to its validity.

11 The section, however, departs from the pre-existing law in several respects. First, there is now no requirement that the comment is one which a fair man31 would have made; the re-labelling from fair comment32 as honest opinion suggests as much. Secondly, malice (ie, spite or bad motive) now does not negate the defence; an honest

opinion is protected even if it is maliciously made.33 Thirdly, there is no longer a requirement that the comment must refer to matters of public interest.34 Clearly, the new defence departs significantly from the defence of fair comment and has considerably enlarged the ambit and applicability of the defence. Perhaps in so doing the law has moved too far in favour of defendants.

V. Reynolds privilege replaced

12 The Explanatory Notes, after stating that s 4 creates a new defence of public interest, add that:35

… it is based on the existing common law established in Reynolds v Times Newspapers and is intended to reflect principles established in that case and in subsequent case law.

A quick account of the case law development in this area would be helpful here.

13 In Reynolds v Times Newspapers36 (“Reynolds”), the House of Lords considered the issue of whether the common law defence of qualified privilege on account of reciprocal duty and interest extended to journalists writing on allegations against political figures (in the case itself, it was alleged that the former Prime Minister had misled Parliament). In approaching the subject, the court emphasised the importance of freedom of expression. The words of Lord Steyn were particularly emphatic:37

The starting point is now the right of freedom of expression … In other words, freedom of expression is the rule and regulation of free speech is the exception requiring justification.

14 Lord Nicholls, whose speech received the full agreement of Lord Cook and Lord Hobhouse, provided a list of ten non-exhaustive

factors (“the Nicholls factors”) in determining whether the duty-interest test is satisfied. The factors include: the seriousness of the allegation, nature of the information and the extent to which the subject matter is a matter of public concern, source of the information, steps taken to verify, and whether comment was sought from the plaintiff. These factors help to determine the standard of conduct the journalist has to satisfy in order to claim the defence of qualified privilege.

15 Reynolds was applied and elaborated upon in subsequent cases, in particular Jameel v Wall Street Europe38 (“Jameel”) and Flood v Times Newspapers Ltd39 (“Flood”). In Jameel, the House of Lords stressed that the Nicholls factors were not tests or hurdles, but only relevant considerations or factors. In particular, it held, reversing the decision of the trial judge and the Court of Appeal, that on the facts the failure to include the claimant's side of the story was not fatal to the defence;40 allowance must be made for editorial judgment.41 In similar vein, in Flood, the Supreme Court allowed an appeal even...