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New Defamation Bill announced in Queen's Speech
Practical Law UK Legal Update 8-519-3834 (Approx. 4 pages)
New Defamation Bill announced in Queen's Speech
by PLC IPIT & Communications
| Published on 10 May 2012 • United Kingdom |
The government announced in the Queen's Speech 2012 that it will introduce legislation to reform the law of defamation.
Speedread
The government has announced in the Queen's Speech that it will introduce legislation to reform the law of defamation which is intended to ensure that a fair balance is struck between the right to freedom of expression and the protection of reputation. Under the Bill, claimants would have to show they had suffered serious harm to succeed in an action for libel; a new statutory defence of responsible publication on matters of public interest would be introduced; libel tourism would be addressed by tightening the test to be applied in relation to actions brought against people who are not domiciled in the UK or the EU; and the Bill would provide greater protection to operators of websites hosting user-generated content, as long as they complied with the necessary procedure to resolve any dispute directly with the author of the material concerned. The proposals have generally been welcomed as a major step to libel reform although the Law Society has expressed reservations about the proposal to introduce a serious harm requirement for statements to be actionable. It is concerned that this proposal is likely to inhibit many people trying to validly protect their reputation from doing so.
Background
In March 2011, the Ministry of Justice published a draft Defamation Bill for consultation (see Legal update, Government publishes draft Defamation Bill for consultation). Provisions in the Bill include:
- A new public interest defence for defendants.
- A requirement for claimants to demonstrate substantial harm.
- Measures to reduce so-called "libel tourism" by making it more difficult to bring claims that have little connection to the UK.
- A single publication rule, preventing repeat claims for libel being made each time a publication is accessed on the internet.
The consultation also contained questions on a number of other issues, including whether the law should be changed to give greater protection to secondary publishers such as internet service providers and discussion forums, and whether an early resolution procedure should be introduced.
In October 2011, the Joint Committee on the draft Defamation Bill published its report, in which it welcomed many of the reforms proposed, but recommended further changes (see Legal update, Joint Committee publishes report on draft Defamation Bill).
In March 2012, the government published its response to the Joint Committee's report. It accepted a number of the committee's recommendations, such as raising the threshold for bringing a claim to one of "serious harm" and specifically abolishing the common law defences. However, it considered that it would be more appropriate for some of the recommendations to be dealt with in the explanatory text or by amendments to the Civil Procedure Rules, rather than specifically in the text of the clauses, such as those in relation to libel tourism. It also rejected some of the committee's recommendations and adhered to its original proposals, for example, in relation to the single publication rule (see Legal update, Government response to Joint Committee's report on draft Defamation Bill).
Facts
The government has announced in the Queen's Speech that it will introduce a Bill to reform the law of defamation.
The government states that main purpose of the Bill is to ensure that a fair balance is struck between the right to freedom of expression and the protection of reputation.
Main elements of the Bill
These include:
- Introducing a requirement that a statement must have caused serious harm for it to be defamatory in order to discourage trivial claims.
- Creating a new statutory defence of responsible publication on matters of public interest (essentially to codify the common law "Reynolds" defence).
- Creating statutory defences of truth and honest opinion to replace the common law defences of justification and fair comment.
- Updating and extending the circumstances in which the defences of absolute and qualified privilege are available, including extending qualified privilege to peer-reviewed material in scientific and academic journals.
- Introducing a single publication rule to prevent an action being brought in relation to publication of the same material by the same publisher after a one-year limitation period has passed.
- Addressing libel tourism by tightening the test to be applied by the courts in relation to actions brought against people who are not domiciled in the UK or a EU member state.
- Removing the presumption in favour of jury trial, leaving the judge a discretion to order jury trial where it is in the interests of justice.
- Introducing a new process governing responsibility for publication on the internet, to give greater protection to operators of websites hosting user-generated content provided they comply with a procedure to enable the complainant to resolve any dispute direct with the author of the material concerned.
- Offering greater protection to secondary publishers such as booksellers by taking away the court’s jurisdiction to hear an action for defamation brought against them except where it is not reasonably practicable for the claimant to bring the action against the author, editor or commercial publisher.
- Enabling the court, under the existing summary disposal procedure, to order publication of a summary of its judgment available in defamation proceedings generally.
Main benefits of the Bill
The government believes the main benefits would be:
- Rebalancing the law to ensure that people who have been defamed are able to protect their reputation, but that free speech and freedom of expression are not unjustifiably impeded by actual or threatened libel proceedings.
- Ensuring that the threat of libel proceedings is not used to frustrate robust scientific and academic debate, or to impede responsible investigative journalism.
- Reducing the potential for trivial claims and address the perception that the UK courts are an attractive forum for libel claimants with little connection to the UK, so that UK law is respected internationally.
Comment
The proposals have generally been welcomed as a major step to libel reform although the Law Society has expressed reservations about the proposal to introduce a serious harm requirement for statements to be actionable. It is concerned that this proposal is likely to inhibit many people trying to protect their reputation from doing so. Some libel practitioners have also criticised the proposal a "sop to the press" in the wake of the Leveson enquiry.