Much like the Claimants who use it, Defamation law in the UK has long been a target for intense criticism.
Our Defamation law is notoriously “Claimant-friendly”, to the point that anyone looking to bring a claim in the UK – whether an individual, business or other corporate body – does not have to prove that any actual harm to their reputation has taken place to be successful, reversing the “burden of proof” to presume that harm to the Claimant and leaving it to Defendants to prove otherwise.
Add to this the recent phenomenon of “libel tourism” – and the lack of a “single publication rule”, and it’s easy to see why the case for reform has gathered pace.
After an initial push from previous Justice Secretary Jack Straw and his hope that the coalition government would carry on the work, which started with Lord Lester’s original draft during 2010, last week saw the publication of the Defamation Bill, containing the most far-reaching proposals for reform of current defamation law in decades. Although welcomed by most, especially the Press, it has already been accused of not going far enough to address the “chilling” effect which the exponential growth in the number of libel actions has had on free speech and responsible journalism.
The key changes proposed by the Bill are:
- A new requirement for Claimants to show that a statement has caused them “substantial harm” – As referred to earlier, the current position is that harm to the Claimant is presumed in libel cases, leading to the risk that many trials can produce an award of a very small or “nominal” sum in damages but still produce a huge amount of legal costs – the statement may be technically “defamatory” in that it can be shown to affect the Claimant’s reputation in the eyes of the man in the street, but the damages awarded as a result could only be in the region of a few thousand pounds, as seen in the first ever award for damages as a result of claims made on Twitter for £3,000 against a costs award of £50,000. This new hurdle should lead to weaker cases being more easily weeded out of Court lists, which has happened much more frequently over the last few years in some notable cases.
However, the Bill contains no guidance on what kind of evidence will need to be adduced to show “substantial harm” – if Companies sue, will this mean that they will now have to show a sharp drop in profits as a result of the statement in question? Businesses may find it much harder to protect their reputations without detailed forensic evidence. If the Bill makes it into law, then any number of cases will limit that uncertainty, but a little detail may go a long way towards avoiding a lengthy exercise in getting to some hard and fast rules over when it’s actually worth suing or even threatening to do so.
- A new defence of “responsible publication on matters of public interest – A statement may be found to be defamatory but there may be a very good reason for “publishing” it, usually on the grounds of informing public debate on a major issue.
The new defence would set out in legislation the requirements to be satisfied before the defence could be run, clarifying what has for years been a complicated and very specific defence which is only usually relied upon by Journalists.
The new proposals would see the Court adopt a more “flexible” approach and would allow other third parties to make use of the defence such as Simon Singh, who recently faced a lengthy trial over his criticism of chiropractic methods after a claim from the British Chiropractic Association. Although Singh won, the new proposals may well mean that similar cases would be fewer and far between and that anyone seeking to challenge current theory could do so without the threat of a libel claim. The defence is still fairly complex and could stand to be clarified even further, especially when dealing with issues of context.
- A new defence of “Truth” – It’s long been the case, under the defence of Justification, that if a comment is true, then it can’t be defamatory. The Bill replaces a complex defence based on decades of case law with a clearer definition – it will be a defence to show that the imputation conveyed by the statement is “substantially true”. Existing cases will still be used as guidance, but the issue should be far easier to deal with. Even then, deciding what the actual “imputation” or allegation itself is may still be a complex and expensive task where the wording of the statement is unclear.
- A new defence of “Honest Opinion” – Replacing “Fair Comment”, recently renamed as “Honest Comment” by the 2010 case of Spiller v Joseph, the new defence would protect statements of opinion (rather than fact) made on a matter of public interest where an honest person could have come to the same conclusion on the basis of the available facts when the statement was made.
Older cases suggested that the statement in question would usually need to include the facts upon which the opinion it contained was based, although this may not now be the case. To be absolutely sure of being able to rely on the new defence, including a summary of the facts will usually be very advisable in the absence of more detailed provisions than what is contained in the Bill.
- Privilege – Certain situations are already recognized as being so important to the public interest that suing on the basis of any statement made during them is prohibited on the basis of “absolute privilege”, such as Parliamentary or Court proceedings. The Bill proposes to extend the situations covered by absolute privilege to include fair and accurate reports of privileged proceedings, which is very sensible. Other situations where whoever makes a defamatory statement can be shown to have a duty or interest in making it to recipients who have similar duties or interests to receive it will be extended to include, amongst others, scientific and academic conferences and reports of meetings of UK companies and fair and accurate reports of press conferences.
- A “single publication rule” – Under the current law, each publication of a defamatory statement allows a Claimant to sue in separate proceedings. In internet libel cases, each hit on a website constitutes a separate publication, meaning that archive material on a site can lead to a libel claim way after the expiry of the usual one-year limitation period.
The Bill proposes a change to a “single publication rule”, meaning that defamatory material can only be sued on for a year after the date upon which it was first published, no matter how long it stays on a site. However, if the material is then re-published by a different site or in a different medium, a Claimant will be able to sue even if limitation has expired, as well as if it has been published in a more prominent way after first making its way onto a site – on a homepage rather than a news page buried under several links.
This is a very sensible change to suit the Internet and Social Media age, but the Bill contains no guidance on situations where older material gains a second life and new exposure through social networks such as Facebook or Twitter, failing to deal with the issue of who would be responsible for the newfound attention. Tweets may link to older material, but may be taken as re-publications in a different medium.
- Libel Tourism – Much of the criticism of the current system relates to “libel tourism”, where wealthy Claimants based outside the UK or EU sue here to take advantage of higher damages and a presumption of damage. Recent cases have seen trivial cases brought by foreign Claimants more readily struck out, but the Bill requires a Court to be satisfied that in cases involving Claimants outside the EU, the UK is clearly the most appropriate place in which a case should be heard.
For example, if an article generates 100,000 hits on a US website and 2,000 on a UK website, the chances are that it won’t be heard here. This is a very sensible move towards considering the global picture in libel claims, but questions remain over how much of a problem libel tourism actually is, even if US lawmakers remain outraged by it and how the rules will be applied in practice; the Bill contains very little guidance on the point.
- Removal of an automatic right to Trial By Jury – Libel cases tend to be lengthy and expensive due to the availability of Jury Trials; the only civil claim in the UK which allows for it. As much as the use of Juries may be the only way to obtain a fair ruling on what is defamatory in the eyes of the man in the street, the fact remains that most of the key decisions on points of law and fact in libel cases are made by Judges. The new rules would see Jury Trials becoming an option only where necessary in the interests of Justice. Again, this is very sensible but in the wake of the “Twitter Joke Trial”, many will ask whether the majority of Judges will truly appreciate the impact of technology on modern-day communication; most Judges still allegedly don’t “get” Facebook or Twitter.
In summary, the Bill answers several very important questions but raises a whole set of new ones. No provisions are made to limit costs in libel cases – even if the Jackson Review leads to the abolition of “no-win, no-fee” cases where Lawyers can recover success fees of up to 100% of their costs if successful, libel claims will remain expensive to the point where less-wealthy claimants simply won’t be able to afford them. The hotly contested issue of whether businesses should be able to sue defamation in the first place has been ignored, probably to allay the fears of corporate claimants, even if they will now need to show “substantial harm” before doing so.
Still, it’s a start and a fairly well balanced one. Even though it has not become law just yet, the Bill is a very clear indicator of the likely future of Defamation Law in the UK and provides a very useful set of issues that can be used immediately to prepare for a more sensible relationship between the Law and the Media.