By Abigail Healey / Category - Reputation Management
After some three years in the making, the Defamation Bill recently received Royal Assent, becoming the Defamation Act 2013. It is likely to come into force later this year.
The Act has been heralded by the Government and campaign groups alike as an "overhaul" of "antiquated" libel laws not suitable for the 21st century. But what does the Act really achieve? It remains to be seen to what extent it will in practice mean real change. The main provisions include:
●a "serious harm" threshold. Of course, a claimant already has to satisfy a "threshold of seriousness" test under the existing law. It is not clear how this new test will differ, if at all, in practice. However, one potentially significant development is that for bodies which "trade for profit", "serious harm" will mean harm which has caused, or is likely to cause, serious financial loss;
● the existing common law defences of justification, fair/honest comment and the Reynolds defence have been codified into equivalent statutory defences of truth, honest opinion and publication on a matter of public interest;
● a new defence for website operators in respect of material published by a third party, but only if the website operator complies with a notice and takedown procedure (which is yet to be drafted);
●a "single publication rule" changing the current position where the 12 month limitation period for libel claims starts afresh each time the defamatory statement is published. This has caused problems with internet archives, because each occasion on which the material is viewed online constitutes a new publication. Under the Act, the limitation period will start running from the first (but not subsequent) publications of that material;
●the removal of the presumption in favour of trial by jury (in practice, jury trials have already become rare in libel cases in any event);
● empowering the Courts to order a defendant to publish a summary of its judgment; and
● allowing proceedings to take place in England only if that is "clearly the most appropriate" jurisdiction (although in practice, this principle is already applied by the Courts).
Only time will tell the extent to which the Act will, in practice, mean real change. It is certainly not the great victory for freedom of expression that certain campaign groups would have us believe. Indeed, in terms of the main defences, the provisions in the Act are a codification of the existing law and in that regard, could be said to be maintaining the status quo. It would seem to suggest that our laws are not so antiquated after all.
Certain of the provisions are to be welcomed. Jury trials, for instance, increase costs enormously. While they have been rare in the last few years, it is a positive development that the presumption will now be in favour of libel cases being heard by judge alone. We also await with interest the regulations in relation to the new defence for website operators. Increasingly, libel disputes are not against the traditional media but relate to user generated content on the internet. The regulations are likely to assist claimants in having defamatory content taken down, as well as assisting them in identifying anonymous authors, which otherwise may not have been possible without obtaining a court order.
The Act does, however, introduce new grey areas. In particular, it remains to be seen how the requirement for a claimant company to show that it has suffered, or is likely to suffer, serious financial loss will be applied. It is likely to be extremely difficult to prove that serious financial loss arises from a defamatory publication (as distinct from other causal factors, such as market conditions). No doubt there will also be argument about what constitutes "serious" in the context of a particular case. As noted above, the Act abolishes some of the existing common law, yet parties are bound to look to case law for guidance when interpreting the Act. Whether the Act does indeed make things simpler, or whether an additional layer of complexity has been added to what was already a highly technical area of law, remains to be seen.
Abigail Healey is a Solicitor-Advocate in the Reputation Protection team at Addleshaw Goddard. The views expressed are her own.