The Defamation Act 2013 - will it make a difference?

The Defamation Act came into force on 1 January 2014. This new Act will only apply to offences occurring after the commencement date.

The Defamation Act 2013 received Royal Assent on 25 April 2013 and then came into force on 1 January 2014. This new Act will only apply to offences occurring after the commencement date. This means that for a period of 12 months, the ‘old’ legislation will apply.

Although there is no single definition, there have been a number of arguments accepted by courts which suggest that a statement will be defamatory if for example:

  • it is false;
  • is harmful to a person’s reputation;
  • decreases respect or confidence;
  • causes ridicule, hatred or contempt;
  • is harmful to a person’s business or profession

Halsbury’s Laws also suggests that a statement will be defamatory if “it tends to lower a person in the estimation of right thinking [people],…causes a [person] to be shunned or avoided or exposes [the person] to hatred, contempt or ridicule….or is disparaging or [harmful] to his office, profession, calling, trade or business.

The Act introduces some significant changes to the law of defamation, including:

  • a new threshold test of “serious harm”,
  • a number of new defences;
  • a new ‘single publication rule’; and
  • new provisions relating to ‘secondary publishers’.

The “serious harm” test is a threshold that claimants must meet before a claim can be successful. Furthermore, companies will now be required to show that they suffered, or are likely to suffer, “serious financial harm”. The aim of this new test is to prevent trivial and/or vexatious claims.

Defences

S.2: Truth: i.e. “the imputation conveyed is…substantially true” (abolishing the common law defence of justification);

S.3: Honest opinion: i.e. an honest statement of opinion that any other honest person in possession of the facts could have held. This defence will be lost if a publisher publishes the opinion of another person (“the author”), and “the claimant shows that the defendant [publisher] knew or ought to have known that the author did not hold the opinion”.

S.4: Publication on a matter of public interest: there must also be a belief that publishing the statement would be in the public interest. The public interest defence requires the writer to show that they reasonably believed that publication was in the public interest, replacing the former, more complex defence of proving the 10 factors relevant to responsible journalism set out in the case of Reynolds v Times Newspapers [2001]. The defendant must show they had a “reasonable belief” that publication was in the public interest. So, although the Reynolds factors appear to have been replaced, courts are likely to take note of the steps the publisher took to establish both truth and public interest. The question of what is (or is not) in the ‘public interest’ remains in the hands of the judge to decide, Lord Hoffman in Jameel and others (Respondents) V Wall Street Journal (2006) said “ the public tends to be interested in many things which are not of the slightest public interest”;

S.5: Defences specifically for web site operators: Although this section appears to protect operators of websites that host user-generated content, it will be lost if the true poster cannot be identified, and the web operator having been given notice fails to respond. In other words if the original generator cannot be found or is anonymous, it is likely that the website operator would be found liable in their place and so have to decide whether to defend the statement or remove it.

S.6: Defences for publications in peer reviewed scientific or academic journals: the statement must be of a scientific or academic matter AND there must have been an independent review either by the editor or “by one or more persons with expertise in the matter”;

This defence, importantly, does not provide protection from actual, or threatened proceedings when scientific or academic topics generally are discussed. The defence refers to narrow confines of peer review. Accordingly academics will find themselves needing to rely on another defence or defences such as: ‘serious harm’; serious financial loss’; ‘honest opinion’ and ‘publication on a matter of public interest’.

S.7: Privilege: absolute or qualified privilege may be open to a number of specific types of report such as a court proceedings or parliament. Some important changes for the academic community include fair and accurate reporting of

  • (9) (a) proceedings of a scientific or academic conference held anywhere in the world, or
  • 9)(b)copy of, extract from or summary of matter published by such a conference.

It is important to note that the privilege conditions themselves must still be observed: e.g. “it must be fair and accurate, of public interest and for the public benefit and, where relevant, include a statement by way of explanation or contradiction if requested”.

S.8: a single publication rule: to prevent repeated claims against a publisher about the same material. The limitation period for actions in defamation is one year and so it follows that this defence will only be available for subsequent publications made within 12 months of the original ;

S10. a defence open to secondary publishers including booksellers and newsagents,removing the possibility of an action for defamation being brought against them if the primary publisher can be found. However, secondary publishers will face similar issues to website operators since the defence in S. 10 falls down if the primary publisher cannot be found.

An action can be brought under S.13 against a secondary publisher, (irrespective of whether or not a secondary publisher can be held liable for he statement itself) seeking an order:

a) for removal of a defamatory statement, or

b) preventing distribution of the defamatory statement;

One final point

In all of this it is important to remember that the Act does not directly reduce the costs of defending a defamation claim, and so any debate, whether or not arguably of a scientific or academic nature must be conducted carefully and appropriately with an eye to the possibility of a claim.

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