July 27, 2012

 

If juries are to go, then there should be no obstacle for a judge to make an early determination on what the meaning of the words complained of are. This will save both parties preparing evidence to fight the case on multiple meanings and save substantial costs. To ensure this happens, we need to see a change to the civil procedure rules and it is to be hoped that this will follow.
The following are the key points to note from the Bill:

Requirement of ‘serious harm’ (Clause 1)

To be defamatory the Bill requires a statement to have caused or be likely to cause ‘serious harm’ to the reputation of the claimant. The wording has been revised since the Draft Bill from ‘substantial harm’ to ‘serious harm’. ‘Serious’ is not defined, although the explanatory notes refer to case law including Thornton v Telegraph Media Group Ltd [ 2010] EWHC 1414, Sim v Stretch [1936] 2 All ER 1237 and Jameel v Dow Jones [2005] EWCA Civ 75. This will inevitably be a new area of fact sensitive litigation.

New defence for the operators of websites (Clause 5)

The Bill introduces a new defence for the operators of websites where the operator has not posted the statement on the website, provided that the claimant cannot show that (1) it was not possible for the claimant to identify the person who did post the statement (2) a notice of complaint was given to the operator and (3) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations. Regulations to be made by the Secretary of State are apparently to follow.

The required components of a notice of complaint are also set out. The notice must:

a. specify the complainant’s name;
b. set out the statement concerned and explain why it is defamatory;
c. specify where on the website the statement was posted; and
d. contain such other information as may be specified in regulations.

The introduction of a specific defence for website operators is good news, as previously websites have had to rely on s1 of the Defamation Act 1996 and the Electronic Commerce (EC Directive) Regulations 2002 (the “Regulations”). However the provision doesn’t go as far as the Regulations, which require a statement to be ‘unlawful’, a high threshold. Recent case law has established that a defendant cannot be certain that a statement is unlawful simply from hearing the claimant’s case. It needs to hear the defendant’s argument also and in any event is not a judge and really needs a court order finding the statement to be unlawful before being in a position to take action. It is hoped that the regulations still to be published will clarify the position.

Extension of privilege to peer-reviewed statements in scientific or academic journals (Clause 6)

The Bill extends privilege to peer-reviewed statements in scientific or academic journals, provided that two conditions are met. Firstly, that the statement related to a scientific or academic matter. Secondly that prior to publication an independent review of the statement’s scientific or academic merit is carried out by the editor of the journal and at least one person with expertise in the matter concerned. Protection also extends to assessments of the statement by the independent reviewer. The defence will be defeated by malice.

New single publication rule (Clause 8)

This provision reverses the long standing common law rule which stipulated that each new publication gave rise to a new cause of action. The new clause, which applies only to publications which are ‘substantially the same’, will be particularly important to internet publication.

The full provisions include:

1. The introduction of the requirement of ‘serious harm’
2. A new statutory defence of truth, codifying the common law justification defence, which is abolished
3. A statutory defence of honest opinion, codifying the common law honest comment defence
4. A new statutory defence of responsible publication on matters of public interest, replacing the common law Reynolds defence
5. A new defence for the operators of websites
6. A new privilege defence for peer-reviewed statements in scientific or academic journals
7. Amendments to absolute and qualified privilege
8. A new single publication rule
9. Provisions to address libel tourism
10. Provision that a court does not have jurisdiction against a person who was not the author, editor or publisher of the statement
11. Trial to be without a jury unless the court orders otherwise
12. Power of court to order a summary of its judgment to be published by the defendant
13. Special damage for slander

For all enquiries on this subject please contact Caroline Kean on +44 (0)207 927 9673.