HomeInsightsWiggin responds to consultation on the draft defamation bill

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However, we also believe that if the ability to protect one’s reputation and seek vindication, or to defend one’s 

right to freedom of expression, is not to be limited to the very rich, this Bill deals with only one of three aspects 
which must be addressed. These are:

• Simplification of the law (addressed by the Bill).

• Court procedures – Currently, defamation cases take far too long to resolve (often taking two years to come to 
trial) and often the key issues are not clarified until very late in the case. This is a significant contributing factor 
to the high costs often incurred in defamation cases. The procedures therefore need to be amended to enable 
early resolution of key preliminary issues to narrow and identify the real issues in dispute at a very early stage, 
and also to enable judges to manage cases more proactively. This would undoubtedly lead to a significant 
reduction in costs.

• Costs – There are two aspects to this. Firstly, the way in which the present CFA regime has been utilised and 
secondly the current procedure and case management of defamation claims (mentioned above). Both these 
aspects have led to inordinately high costs in many defamation cases, and the risk (or threat) of incurring such 
costs has had a severe “chilling effect” on freedom of expression.

Whilst we welcome the majority of changes proposed in the Bill, unless all three of these areas are addressed, we
are strongly of the view that the current concerns surrounding defamation litigation will not be resolved. Our
response to this consultation should therefore be seen in this context.

Q1. Do you agree with the inclusion of a substantial harm test in the Bill?

Yes.

Although the courts have articulated in recent cases such as Jameel v Dow Jones & Co the need to establish a
real and substantial wrong, we agree that this principle should be expressly incorporated into the Bill to
discourage trivial claims or, if they are made, to ensure that they can be disposed of at an early stage.
Furthermore, we believe that if the Bill is to achieve its aim of simplifying libel law, it is important that this key
threshold of seriousness which libel claims must meet should be incorporated into any new legislation.Q2. Do you have any views on the substance of the clause?

We believe that, in order to retain some flexibility, the test should not be too prescriptive. We therefore take
the view that the proposed wording of the clause is appropriate. Although this may result (at least initially) in
increased litigation regarding the meaning of “substantial harm”, we believe that as long as the courts are
able to refer to the present case law for guidance, the benefits to be gained from the ability to dispose of
unmeritorious claims at a very early stage outweigh the risk of possible front-loading of costs. We agree that
the Civil Procedure Rule Committee should consider to what extent the procedural rules need to be amended
in order to facilitate this.

We also believe that more detailed consideration should be given to how this test will be applied to
corporations (see our response to question 38 below).

Q3. Do you agree that the Slander of Women Act 1891 and the common law rule referred to in paragraph 6 should
be included among the measures for repeal in the Repeals Bill?

Yes.

Q4. Do you agree with the inclusion of a new public interest defence in the Bill? Do you consider that this is an
improvement on the existing common law defence?

Yes, we agree with the inclusion of a new public interest defence in the Bill. Although we agree that it is an
improvement on the existing common law defence, we believe that several aspects require clarification (see
our responses to question 5 below).

Q5. Do you have any views on the substance of the draft clause?

Unlike sections 3 and 4 of the Bill, where it is expressly stated that the common law defences of justification
and fair comment will be abolished, it is unclear whether the defence set out in sections 2(1) and 2(2) of the
Bill is intended to replace the common law defence of Reynolds public interest qualified privilege, or whether
it is to be an additional new statutory defence. If it is to be an additional defence, we would welcome
clarification of the difference between the two defences and the situation(s) in which each would apply.
In particular :

a) do you agree that it would not be appropriate to attempt to define “public interest”? If not, what definition
would you suggest?

The concept of “public interest” has been narrowly construed in the context of the existing common law
defences of qualified privilege and honest comment. It could be argued that this narrow approach is outdated
and does not reflect society today. What is currently considered to be in the “public interest” by the courts in
England and Wales is very different to what is considered to be in the “public interest” in some other
jurisdictions (for example the United States of America). Whilst we appreciate that Parliament may not wish to
extend “public interest” to cover absolutely anything in which the public are interested, we believe that the
current approach is far too narrow, and that (if a “public interest” test is to be maintained) a less restrictive
approach should be taken regarding what matters would be considered to be in the “public interest”.

b) do you consider that the non-exhaustive list of circumstances included in subsection (2) of the clause should
include reference to the extent to which the defendant has complied with any relevant code of conduct or
guidelines?

We welcome the fact that section 2 of the Bill will afford a “responsible publication” defence not only to
traditional media organisations, but also to others publishing on matters of public interest such as scientists,
campaigning organisations and citizen journalists. Given the vast variety of publications and publishers that
this defence will encompass, it is important that section 2 allows the courts sufficient flexibility to take into
account any relevant circumstances in a particular case. Whilst it is helpful to have the guidance of the factors
listed in section 2(2)(a)to (h) of the Bill, we are concerned that is should be stated more clearly that these are
merely examples of the matters which the court may take into account, but that it is not an exhaustive or
mandatory checklist; there may be other factors not listed which are relevant, and indeed some of the listed
factors may be irrelevant, depending on the circumstances of a particular case.

We do not think it appropriate to include reference to the extent to which the defendant has complied with
any relevant code of conduct or guidelines. Outside the mainstream media, there are no formal bodies
regulating the way in which publications are made. Nevertheless many organisations, in an attempt to ensure
good internal practices, produced informal internal guidelines purely for guidance purposes rather than
mandatory compliance, and it would be unreasonable to penalise defendants for not complying with such
guidance. Furthermore, there is a danger that including reference to codes of conduct and guidelines in
section 2 would discourage publishers from producing any internal guidance at all, and that would not be
beneficial.

c) do you consider that the nature of the publication and its context should be given greater weight than the
other circumstances in the list?

No.

We believe that the weight to be given to any relevant factor (whether listed in section 2(2) of the Bill or
otherwise) will depend on the circumstances of each case, and it should be left to the court to decide the
weight to be given to each factor on a case-by-case basis.

d) do you agree that the defence should apply to inferences and opinions as well as statements of fact, but that
specific reference to this is not required? If so, are any difficulties likely to arise as a result of the overlap
between this defence and the new honest opinion defence?

We agree that the defence should apply to inferences and opinions, as it should be legitimate to make such
statements as well as statements of fact if they are responsibly published. Although brief reference is made in
section 2(2)(h) of the Bill, we take the view that it would be much clearer, and create more certainty, if this is
stated expressly at the outset of the provision, in section 2(1)(a) of the Bill.

Whilst we appreciate that there may be publications to which both this defence and the new honest opinion
defence apply, we do not believe that would cause any material difficulties. Publications rarely consist of a
single statement of fact, or a single statement of opinion. Usually they consist of a number of statements,
some or all of which may be defensible on different bases – indeed, it is not uncommon even at present for
several defences to be pleaded in relation to the same publication. We see no good reason to restrict the
position in relation to this defence, particularly if (as we suggest in response to question 12 below) the “public
interest” requirement is removed from section 4.

e) do you agree with the approach taken on the issue of “reportage”?

Yes.

6. Do you agree that it is appropriate to legislate to replace the existing common law defence of justification with
a new statutory defence of truth?

Yes.

Q7. Do you agree that the common law defence should be abolished, so that existing case law will be helpful but
not binding for the courts in reaching decisions in relation to the new statutory defence? If not, what
alternative approach would be appropriate?

Yes.

Q8. Do you have any views on the substance of the draft clause?

No.

Q9. Do you consider that the current law is producing unfair results where there is a single defamatory imputation
with different shades of meaning? If so, how could this best be addressed?

We believe that the current law presents a serious risk of prejudice to defendants where there is a single
defamatory imputation with different shades of meaning. This often leads to tactical pleading by both sides
which can prolong litigation, and increase costs, rather than encouraging them to resolve matters realistically
and expeditiously. We agree with Lord Lester that this would best be addressed by including a provision in the
Bill stating that the defence of truth would not fail only because a particular meaning alleged by the claimant is
not shown as being substantially true, if that meaning would not materially injure the claimant’s reputation
having regard to the truth of what the defendant has shown to be substantially true.

Q10. Do you agree that it is appropriate to legislate to replace the existing common law defence with a new
statutory defence, and that this should be called a defence of honest opinion?

Yes.

Q11. Do you agree that the common law defence should be abolished, so that existing case law will be helpful but
not binding for the courts in reaching decisions in relation to the new statutory defence? If not, what
alternative approach would be appropriate?

Yes.

Q12. Do you have any views on the substance of the draft clause? In particular:
a) do you agree that condition 1 adequately reflects the current law that the statement must be recognisable as
comment?

Yes.

b) do you consider that the requirement in condition 2 that the matter in respect of which the opinion is
expressed must be a matter of public interest should be retained?

No. It should be sufficient that it is an honestly held opinion made on a factual basis as set out in condition 3.

We can see no good reason to prevent a person from expressing an opinion on any matter, whether in the
public interest or not, which satisfies condition 3 as long as the statement is recognisable as an opinion.
It appears that the inclusion of the “public interest” requirement in condition 2 is intended to address the
concern that opinions might be expressed about private matters. However, we consider that condition 2 goes
too far and a different approach should be taken. It should be permissible to express opinions on private
matters if the facts or statements upon which the opinion is based (condition 3) are already in the public
domain or publication of which would not constitute a misuse of private information. We would therefore
propose that condition 2 should be deleted and condition 3 amended as we suggest.

c) do you agree with the approach taken in relation to condition 3 that the opinion must be one that an honest
person could have held on the basis of a fact which existed at the time the statement was published or an
earlier privileged statement?

Yes.

d) do you consider that the defendant should be allowed to rely on the honest opinion defence where they have
made a statement which they honestly believed to have a factual basis, but where the facts in question prove
to be wrong?

No, provided that the public interest defence in section 2 of the Bill may apply to such statements (if they fulfill
the criteria set out in section 2). We believe that this is reasonable and proportionate given that, in order to
fall within section 2, such statements would have to be shown to be in the public interest and responsibly
published.

e) do you agree that the new defence should not apply to statements to which the public interest defence in
clause 2 of the Bill applies?

No, for the reasons stated in response to questions 5(d) and 12(d) above.

f) do you agree that an objective test of whether an honest person could have held the opinion should apply? If
not, would a subjective test of whether the defendant believed that his or her opinion was justified be
appropriate?

Opinions are as a matter of course subjective, and statements which are recognisable as opinions should not
be subject to any reasonableness threshold. We therefore believe that a subjective test should be applied, and
that the defence should only be defeated in this respect if the claimant shows that the defendant did not hold
the opinion as set out in section 2(5) of the Bill. We do not agree that a subjective test would make the
defence more complex.

Q13. Do you have any views on the changes made to the scope of absolute and qualified privilege in clause 5? In
particular:
a) do you agree that absolute privilege should be extended to fair and accurate reports of proceedings
before international courts and tribunals as proposed? If not, what extension (if any) would
be appropriate?

Yes.

b) would it be helpful to define the term “contemporaneous” in relation to absolute privilege for
reports of court proceedings? If so, how should this be defined?

See response to question 13(c) below.

c) alternatively, should the distinction between absolute and qualified privilege in relation to
contemporaneous and non contemporaneous reports be removed? If so, which form of privilege
should apply?

Yes – absolute privilege should apply to both contemporaneous and non-contemporaneous reports of all
proceedings listed in section 5(1) of the Bill.

d) do you agree that Part 2 qualified privilege should be extended to summaries of material? If so, do you have any views on the approach taken?

Agreed.

e) do you agree that Part 2 qualified privilege should be extended to fair and accurate reports of
scientific and academic conferences? If so, should definitions of these terms be included in the Bill,
and how should any definitions be framed?

Agreed. (See also response to question 14 below).

We do not believe it is necessary to define terms such as “scientific and academic conferences” and
“peer-reviewed scientific and academic publications”. It is preferable for the courts to consider
whether the defence should be available on a case-by-case basis.

f) do you agree that Part 2 qualified privilege should be extended to cover proceedings in other
countries? If so, do you have any views on the approach taken?

Agreed.

g) do you agree that Part 2 qualified privilege should be extended to fair and accurate reports of proceedings at general meetings and documents circulated by public companies anywhere in the world? If so, do you have any views on the approach taken?

Agreed.

h) do you agree that no action is needed to include a specific reference to press conferences? If not,
please give reasons and indicate what problems are caused by the absence of such a provision.

No.

In the interests of certainty, we believe that express reference should be made to press conferences.
The current provisions of paragraph 12 of Schedule 1 to the Defamation Act 1996 define a “public
meeting” as “a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or
discussion of a matter of public concern, whether admission to the meeting is general or restricted.”
It is conceivable that a claimant may argue that a particular press conference was not for discussion of
a matter of “public concern” and therefore would not fall within paragraph 12. We take the view that
all press conferences, regardless of subject matter to be discussed, should be protected, and this can
only be achieved with certainty by an express reference in clause 5.

i) do you consider that qualified privilege should extend to fair and accurate copies of, extracts from, or
summaries of the material in an archive, where the limitation period for an action against the original
publisher of the material under the new single publication rule has expired? If so, how should an
archive be defined for these purposes to reflect the core focus of the qualified privilege defence?

Yes. If qualified privilege were not extended to archive material which has already been published, that
would effectively discourage use of such material for any kind of research or public debate, whether
historical, academic, scientific or journalistic. Without such protection, anyone wishing to refer to
such material would be opening themselves up to the risk of libel proceedings unless they effectively
re-investigated that matters referred to in that material. Very few people would have the resources to
undertake such an exercise, and this has undoubtedly led to a significant chilling effect on freedom of
speech. If this is not addressed, that chilling effect, caused by the fear of litigation and the associated
heavy costs, will continue.

Any definition of an archive should (insofar as possible) be technology-neutral so that it encompasses
not just current forms of storage of published material (eg. hard copies, microfiche, online, in the
‘cloud’) but also future developments in storage technology. Given the rapid rate at which technology
is developing, this will minimise the risk that the Bill will quickly become outdated.

We also suggest that it may be appropriate for any definition of an “archive” to include that it should
be accessible to members of the public (whether on a registration or paid subscription basis or by way
of free access).

Q14. Do you consider that any further rationalisation and clarification of the provisions in schedule 1 to the 1996
Act is needed? If so, please indicate any particular aspects which you think require attention.

We believe that Part 2 qualified privilege should also be extended to include peer-reviewed publications,
such as peer-reviewed papers published in scientific and academic journals. Such publications constitute an
integral, and very important, part of scientific and academic research and debate, and it is vital that they,
too, are protected as a matter of public policy to alleviate the chilling effect of the current laws on such
debate. Peer-reviewed publications are subject to far more oversight and checking than conference
materials, and in our experience publishers of peer-reviewed journals generally have in place a procedure for
publication of a “right to reply” by complainants, which is consistent with the principles of qualified
privilege.

Q15. Does the specific issue raised by the National Archives affect any other forms of archive, and have problems
arisen in practice? If so, would it be right to create a new form of qualified privilege in this situation?

We are not aware of specific examples, but in principle we would support a new form of qualified privilege to
protect such archives for the reasons set out in response to question 13(i) above.

Q16. Do you agree with the inclusion of a clause in the Bill providing for a single publication rule?

Yes.

Q17. Do you have any views on the substance of the draft clause? In particular,a) do you consider that the provision for the rule to apply to publications to the public (including a section of the public) would lead to any problems arising because of particular situations falling outside its scope?

We would welcome clarification as to what is meant by “a section of the public”, as we anticipate that this
term will otherwise be the subject of litigation and increased costs. Given that a claimant only has to
demonstrate publication of a defamatory statement to one person in order to establish a cause of action, we
believe that this section should apply the same principle.

b) do you agree that the single publication rule should not apply where the manner of the subsequent publication of the material is materially different from the manner of the first publication? If not, what other
test would be appropriate?

No.

We are concerned that section 6(4) of the Bill is too restrictive and, as currently drafted, will result in more
litigation rather than less. It seems to be focused on online archives and internet publications without taking
full account of either technological changes or the way in which the public accesses and consumes
information. The media for conveying information to the public have converged to such an extent that it is
outdated to draw distinctions between different methods of publication. For example, a number of
broadcasters have online and digital video-on-demand (“VOD”) services. After broadcasting a programme on
its television channel, a broadcaster may put it on its VOD service. Why should the fact that the technological
manner of publication is different deprive the broadcaster of the protection of the single publication rule?
Similarly, many magazine and newspaper publishers have websites and mobile applications associated with
their magazines or newspapers on which they publish (either in full or as edited versions) articles which have
been published in their print editions. If the article is edited so as to materially change its meaning it should of
course fall outside the single publication rule, but if it is substantially the same material we believe it should be
protected.

Q18. Do you consider that any specific provision is needed in addition to the court’s discretion under section 32A of
the Limitation Act 1980 to allow a claim to proceed outside the limitation period of one year from the date of
the first publication?

No.

Q19. Do you agree that the proposed provisions on libel tourism should be included in the draft Bill?

Yes.

Q20. Do you have any views on the substance of the draft clause?

No.

Q21. Do you agree that the presumption in favour of jury trial in defamation proceedings should be removed?

Yes (subject to our response to question 22(b) below).

Q22. Do you have any views on the substance of the draft clause? In particular:
a) do you consider that guidelines on the circumstances governing the courts’ exercise of its discretion to order
jury trial should be included on the face of the Bill? If so, what factors or criteria do you consider would be
appropriate? Please provide examples.

No (subject to our response to question 22(b) below).

b) would it be appropriate for any provisions to be included in the Bill to clarify which issues should be for the
judge to decide and which for the jury (where there is one)? If so, do you consider that any changes are
needed to the role of the jury on any particular issue (in particular in relation to determining meaning)?

There is a lot of currency given to the suggestion that the involvement of juries in defamation cases increases
costs significantly, and unnecessarily. Whilst we agree that, because of the current procedures in place for
defamation cases, there is no doubt that jury trials are inevitably longer than judge alone trials, we do not
believe that juries should be excluded altogether, particularly when it comes to the issue of meaning.
We believe that if there is a dispute as to meaning and/or whether the words are in fact defamatory, these
should be tried as preliminary issues before a jury at a very early stage, regardless of whether the trial is to
take place before a jury or judge alone. The classic definition of a defamatory statement is one that lowers a
person’s reputation in the mind of “right-thinking people” and we take the view that a jury is more
representative of that than a single judge. The use of juries in these circumstances would eliminate the risk of
criticism that judges may allow their personal views to influence their determination of the meaning of a
publication, and would not significantly increase costs as, in the vast majority of cases, the only document
which a jury would need to consider in order to determine meaning would be the publication complained of.
In cases where an innuendo was pleaded, proper case management would ensure that the issues put to a jury
would be kept to a minimum.

Q23. Do you consider that it would be appropriate to change the law to provide greater protection against liability
to internet service providers and other secondary publishers?

Yes.

Internet service providers (“ISPs”) and other secondary publishers are caught between the claimant and the
defendant publisher who placed the material on the internet. ISPs and other secondary publishers will not
have researched or had any input into the publication complained of, nor will they be aware of any of the
underlying material. They simply facilitate access to the material. At present, when a complaint is made, to
avoid liability they are effectively expected either to defend the publication as if they had researched and
written it themselves, or to take it down immediately. That has a number of consequences:
• It places an unreasonably onerous burden on ISPs and secondary publishers.
• Once they are notified of a complaint, ISPs/secondary publishers have no window within which to ascertain
from the author/primary publisher whether the publication is defensible, without the ISPs/secondary
publishers incurring liability.
• Even if the ISPs/secondary publishers are assured by the author/primary publisher that the publication is
defensible, the ISPs/secondary publishers cannot allow the material to remain on the internet without
incurring liability.
• It therefore leaves the ISPs/secondary publishers with no option but to take down material immediately,
thereby depriving the author/primary publisher of his right to defend his publication. We believe that this
is an unwarranted infringement of the author/primary publisher’s right to free expression, and places an
undue burden on ISPs/secondary publishers.
• It is effectively a form of censorship of any criticism, however justified or reasonable that criticism may be.

Q24. If so, would any of the approaches discussed above provide a suitable alternative? If so, how would the
interests of people who are defamed on the internet be protected? Do you have any alternative suggestions?

We would be in favour of exploring further the following possibilities:
• A statutory system in which the ISP or secondary publisher acted as the liaison between the complainant
and the author/primary publisher, but if the matter could not be resolved in correspondence, the
complainant would have to sue the author/primary publisher but could not pursue the ISP/secondary
publisher.• A claimant being required to utilise a form of preliminary or summary procedure (perhaps analogous to
the CPR Part 8 procedure) to obtain a court order for the removal of the material complained of before
any obligation can be imposed on the ISP/secondary publisher to remove it.
In both cases, in order to protect the interests of people who claim to be defamed, one option might be that
as soon as it is notified of a complaint, the ISP/secondary publisher could be required to post a notice on the
publication complained of that it is the subject of a complaint which has yet to be resolved. Consideration
would have to be given to whether a standard wording for such a notice can be formulated, and the
prominence with which it should be posted. We would also suggest that if the complainant does not issue
legal proceedings within the limitation period, the ISP/secondary publisher should be entitled to remove any
notice which has been posted without incurring liability.

Q25. Have any practical problems been experienced because of difficulties in interpreting how the existing law in
section 1 of the 1996 Act and the E-Commerce Directive applies in relation to internet publications?

See response to question 23 above.

Q26. Do you consider that clause 9 of Lord Lester’s Bill (at Annex C) is helpful in clarifying the law in this area? If so,
are there any aspects in which an alternative approach or terminology would be preferable, and if so, what?

If the options raised in response to question 24 are not considered to be appropriate, Lord Lester’s proposal
for a formal notice and take-down procedure would create greater certainty for both claimants and
defendants but we do not believe that this would adequately address the concerns raised in the response to
question 23 above.

Q27. If Lord Lester’s approach is not suitable, what alternative provisions would be appropriate, and how could
these avoid the difficulties identified above?

See responses to questions 23-26 above.

Q28. Have any difficulties arisen from the present voluntary notice and takedown arrangements? If so, please
provide details.

See response to question 23 above.

Q29. Would a statutory notice and takedown procedure be beneficial? If so, what are the key issues which would
need to be addressed? In particular, what information should the claimant be required to provide and what
notice period would be appropriate?

See response to question 26 above. We believe that a notice period of 28 days would be more appropriate,
and consistent with the timeframe set out in the Defamation Pre-Action Protocol to the Civil Procedure Rules

Q30. Do you consider that a new court procedure to resolve key preliminary issues at an early stage would be
helpful?

Yes. We believe that this is essential if costs in defamation cases are to be reduced. Resolving key preliminary
issues at an early stage will assist greatly in narrowing legal proceedings to the real issues in dispute between
the parties so that cases may be dealt with more swiftly and efficiently. It may well also encourage the parties
to negotiate or mediate.

Q31. If so, do you agree that the procedure should be automatic in cases where the question of whether the
substantial harm test is satisfied; the meaning of the words complained of; and/or whether the words
complained of are matters of fact or opinion are in dispute?

Yes. As stated in response to question 22(b) above, we believe that if meaning is in dispute, it should be tried
as a preliminary issue before a jury. All other preliminary issues should be dealt with by judge alone.

Q32. Do you consider that the issues identified in paragraph 127 above should also be determined (where relevant)
under the new procedure? Please give your reasons.

We agree that (if they are in dispute) the question of whether a publication is on a matter of public interest,
or whether it falls within Schedule 1 of the Defamation Act 1996, should be also be tried as preliminary
issues. Early determination of these issues will establish whether the defendant can rely on these defences. It
would potentially narrow the scope of the legal proceedings considerably and, again, may well encourage the
parties to negotiate or mediate.

With regard to costs budgeting being determined as a preliminary issue, although we are open to this idea in
principle, we would like to see more detailed proposals before commenting substantively on this.

Q33. Are there any other issues that could usefully be determined under the new procedure? Please give your
reasons.

No.

Q34. Do you have any comments on the procedural issues raised in the note at Annex D and on how the new
procedure could best operate in practice?

We endorse the proposals in Annex D, but would like to see procedural reforms which assist judges to be very
pro-active in the management of cases and scheduling of hearings to ensure that the real issues in dispute are
clarified at as early a stage as possible.

Q35. Do you consider that the summary disposal procedure under sections 8 and 9 of the 1996 Act should be
retained?

No.

In our experience it is rarely used. It adds a further layer of costs, and the offer of amends procedure or
negotiation is more likely to be utilised.

Q36. If so, do you consider that any amendments could be made to the procedure to make it more useful in
practice, and if so, what? In particular, should the Lord Chancellor exercise his power to amend the level of
damages which can be ordered under the summary procedure? If so, what level should be set?Q37. Do you consider that the power of the court to order publication of its judgment should be made available in
defamation proceedings more generally?

No.

A defendant should not be required to pay damages and publish a statement. The vindication that a claimant
in defamation proceedings receives is reflected in the public verdict of the jury/judge’s decision and the
damages awarded. Although the Press Complaints Commission can order publication of its ruling if a
complaint is upheld, that is appropriate because it has no power to award any monetary compensation or
costs.

Furthermore, not all defendants are media organisations and therefore may not have the ability to publish a
statement.

Q38. Do you consider that any further provisions in addition to those indicated above would be helpful to address
situations where an inequality of arms exists between the parties (either in cases brought by corporations or
more generally)? If so, what provisions would be appropriate?

We believe that a corporation does have a reputation that it may be entitled to protect, but the nature of its
reputation and the way in which it can be damaged is very different from an individual. A corporation does
not have feelings, it does not suffer distress. It can, however, suffer damage. The effect of a defamatory
statement on a corporation’s reputation and its ability to prove direct financial damage will be affected by the
nature of its business. For example, it may be relatively easy for a manufacturer or retailer to demonstrate
that sales of its products have fallen as a result of a defamatory publication. The position is unlikely to be so
straightforward in the case of a corporation which provides professional or commercial services and where
the success of its business hangs entirely on its professional reputation, and where damage is much less easily
demonstrated in the immediate aftermath of the publication.

Furthermore, all corporations are now commonly expected to exercise some degree of corporate social
responsibility (“CSR”), and defamatory statements about their CSR commitments can be just as damaging as
defamatory statements about their products or services, not only in the eyes of those with whom they do
business but also future employees and the world at large.

On the other hand, we have experience of libel cases being brought by large and wealthy corporations, even
when they have not in reality suffered any material damage, with the sole purpose of stifling criticism through
the threat of lengthy and expensive legal proceedings which most defendants, unless they are large media
organisations, simply cannot afford. There is no doubt that these tactics have had a severe chilling effect on
freedom of expression, and they must be addressed.

Therefore, we believe that further consideration needs to be given to the treatment of corporations in the Bill.
We do not believe that all corporations can be bundled together and a “one-size-fits-all” test of financial
damage applied across the board.

Q39. Do you agree that it would not be appropriate to legislate to place the Derbyshire principle in statute? If not,
please give reasons and provide evidence of any difficulties that have arisen in practice in this area.
Yes. Q40. Do you agree that it would not be appropriate to legislate to extend the Derbyshire principle to restrict the
ability of public authorities or individuals more generally to bring a defamation action? If not, please give
reasons and indicate how any such provisions should be defined.

Yes.

Q41. Do you have any comments on the costs and benefits analysis as set out in the Impact Assessment?

No.

Q42. Do you have any information that you believe would be useful in assisting us in developing a more detailed Impact Assessment?

No.

Q43. Do you consider that any of the proposals could have impacts upon the following equality groups?
Age
Disability
Gender Reassignment
Married and Civil Partnership
Pregnancy and Maternity
Race
Religion and Belief
Sex
Sexual Orientation

No.

WIGGIN LLP
31 MAY 2011

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