With the Defamation Act 2013 likely to start bringing “new style” defamation cases into the courtroom next year, now is a good time to take a look at what is, and what is not, defamation in the United Kingdom.
The new Defamation Act changes a lot of what was considered defamation; reduces the potential for “libel tourism” into the UK; and alters the range of defences available.
What is Defamation Under the 2013 Act?
Section 1 of the new Act requires “serious harm” to be caused, or be likely to be caused, to the reputation of the defamed person. Without serious harm, there is no case to answer. This is now the only definition of defamation, replacing the oddities of determining if a statement is slander or libel based on how it was published or transmitted.
Libel tourism is severely curtailed under the new Act. Statements are still recognised as defamation if they are made and published abroad but, under s. 9, the court now requires that a claimant demonstrate that England and Wales “is clearly the most appropriate place in which to bring an action”. This is likely to limit defamation cases to ones where:
- the defendant is in the UK; or
- their statements were published in the UK; or
- most of the problems arising from the defamation are in the UK.
The rules on republication of statements by the same person have been streamlined.. If the defaming statement is republished “as is”, the courts regard this as a single case of defamation. The same goes if a second statement is made but it is essentially the original statement in different words. Defaming statements now only count as separate, and thus produce a second case to answer, if they are “materially different” from the original.
There are three main defences under the new Act: truth, honest opinion, and publication on a matter of public interest. Each has their own requirements.
The Truth Defence
Under s. 2 of the 2013 Act, it is a defence to demonstrate that whatever has been imputed by the statement or publication in question was “substantially true”. Sometimes multiple statements in the same broadcast or publication will give rise to separate claims for defamation that are then lumped into one case.
If only one of the statements is true, the case does not have to fail. Instead, consideration has to be given to whether the claims which are not true are able to cause serious harm to the claimant’s reputation. If they could, or have, the case can continue.
This “truth defence” replaces the old defence of “justification”.
The Honest Opinion Defence
Honest opinion is a defence under s.3 of the 2013 Act and it replaces the old defence of “fair comment”. Here, the defendant must demonstrate three things:
- the statement was a “statement of opinion”;
- the statement indicated the “basis of the opinion”, either in general or specific terms; and
- an “honest person” could have held the same opinion on the basis of:
- facts that existed at the time; or
- anything asserted as fact that was published in a privileged statement before the time of the statement being complained of.
This defence will be of great use to the writers of opinion and editorial pieces, as they can rely on court reports as “privileged statements”. If something relied on in a privileged statement is proved to be false after the statement in the opinion or editorial is published, that will not give rise to a defamation claim. If the writer were to make another statement based on the privileged statement after the evidence of the falsehood was made public, that would be a different matter.
The Publication on a Matter of Public Interest Defence
This third defence replaces what the old Reynolds defence. Reynolds was a case dating back to 2001 in which the courts determined that journalists have a duty to publish allegations even if they later turn out to be wrong.
This is, of course, because of the overriding public interest in knowing the news of the day. The new defence reflects the spirit of the Reynolds case but codifies it into law in a more straightforward manner. Now, a defendant must only prove that:
- the statement being complained of is a statement about a matter of public interest; or
- the statement being complained of forms part of a statement on a matter of public interest; and
- the defendant believed that publishing the statement was in the public interest.
In essence, this means that scurrilous lies and rumour brought about by the common gossip in the local pub is unlikely to be given the benefit of the defence, but a tip-off from a reliable source is still protected.
Protection for Website Operators
The 2013 Act provides new protections for website owners following the rise of social networks and the rampant misuse of website comment sections by people wanting to hurl abuse at one-another.
Under s.5 of the 2013 Act, it is a defence for the operator of a website to demonstrate that they did not post the defamatory statement in question. However, this is only true if the claimant can identify the true author of the statement. If they cannot, the website owner is still liable.
The claimant must issue a “notice of complaint” to the defendant about the offending statement. The defendant is then required to respond to this complaint. Usually this will involve identifying the person responsible for the complaint. The defamed party can then use this information to sue the person actually responsible for the statement.
The new law on defamation in the UK is a lot more streamlined than before and reflects changes in society, as well as the development of case law over the last decade. It is likely to severely curtail libel tourism, which should make international bloggers happy, and it protects website operators from being sued due to misuse of their sites.
The 2013 Act has yet to come fully into force but the first cases under the new law are expected to begin to receive hearings in the courts some time in 2014.