Government Response on the Draft Defamation Bill

On 29 February the Government published its Response to the Report of the Joint Committee on the Draft Defamation Bill.

The Government accepts the substance of the majority of the Joint Committee’s recommendations in whole or in part. Not all will be effected by substantive amendments to the Bill, some will require changes to the Civil Procedure Rules, other matters the Government considers are better dealt with in the explanatory notes to the Bill, rather than in legislation. The aim appears to be to keep the Bill itself (currently only 6 pages long) as clear and concise as possible, without being overly prescriptive on matters of detail.

Changes which the Government proposes to make include:

• The introduction of a “serious harm” test for defamation claims. In the Draft Bill the language used was “substantial harm” and the Joint Committee recommended “serious and substantial harm”.
• Specific provisions to abolish the common law defences which will be codified in the Bill.
• Support for extending the use of a judge’s power to order a summary of his or her judgment to be published by a Defendant; but confirmation that there are no plans to introduce a power for a judge to order publication of an apology.

The Government rejected the Joint Committee’s recommendation that the Bill include separate specific provision for corporations suing in defamation.

There are a number of matters which will require further work before detailed provisions are included in the Bill or in other measures, these include:

• The details of the proposed early resolution procedure
• Defamation and the internet – in particular potential proposals for online intermediaries to act as a liaison between the complainant and the author of an online posting.
• The reportage defence.
• How to protect peer review journals.

The Joint Committee also addressed matters which whilst outside its remit, and the remit of the Draft Defamation Bill, clearly have caused the Joint Committee, and others, concern:

• In particular the Committee expressed serious concerns about the costs of defamation proceedings and the changes the Government is making to CFAs in the light of the Jackson Report.
• The Committee also recommended clarification of parliamentary privilege, in terms of reporting what is said in Parliament and protection for communication between MPs and constituents.

These matters are being taken forward by the Government in other legislative vehicles.

The Defamation Bill, once finalised, is expected to be introduced into Parliament in the next Parliamentary session.

The website of the Joint Committee can be found here.