By Jonathan Barnes QC
1 Jul 2014
James Price QC, Jonathan Barnes and Yuli Takatsuki will be reviewing the first few months in force of the Defamation Act 2013 at Conference5RB on 30 September 2014. Here they outline some of the themes for discussion.
Qn: The Defamation Act 2013 came into force on 1st January 2014, billed as providing enhanced protection for publishers and website operators, and with measures to curb trivial claims and “libel tourism”. Has it been a success?
Jonathan: It is too early to say in terms of judicial decisions, with no cases so far decided under the Act. This probably reflects simply that the Act has no retrospective effect. Defamation complaints arising since the beginning of this year are still being formulated and will be in their relatively early stages. However, anecdotal accounts suggest that potential company claimants are treating the statutory requirement of serious harm introduced by section 1 as a significant bar to seeking relief, where they are not able to identify readily any actual financial loss arising as a result of defamatory allegations made about them. This is not actually what section 1(2) of the Act says, contemplating as it does that a company may suffer serious harm where it is likely to be caused serious financial loss by something said about it. But it may be that, in the early days of the Act, some corporate claimant advisers have swallowed too much of the defendant hype that featured particularly during the lobbying stages of the Bill.
James: There is a preliminary issue pending in an action brought by a non-profit corporation and its chief executive, in which the claimants have little actual evidence of particular harm. So the question for the court is whether it is enough to satisfy the “serious harm to reputation” test in s.1 of the Act that the allegation can be regarded as a very serious one, widely circulated in a national newspaper. The issue may not be decided before the 5RB conference on 30 September. It will be an earthquake if the newspaper wins.
Yuli: One issue I see as being a significant change from the past is how the serious harm test ties in with injury to feelings. You can of course have the latter without the former, but the new test appears to say that injury to feelings is no longer enough. The serious harm must be “harm to reputation”. Thus, a statement which merely passed the common law test for being defamatory, and caused serious distress or hurt feelings as a result, would not qualify as being defamatory under the Act. I see that as being quite a departure from previous law and is no doubt going to reduce the number of libel claims.
Qn: What potential problems do you foresee in applying the Act?
James: Most of the provisions of the Act are clear enough, though as always there will be uncertainties about the application of particular provisions in cases at the margin. In my view, the most difficult problem of construing the Act arises under s.3, honest opinion. The first two conditions for the defence, that the statement complained of is one of opinion, and that the statement indicated in general or specific terms the basis of the opinion, present no particular difficulty. It is the third condition that raises a puzzle. The condition is that an honest person could have held the opinion on the basis either of any fact which existed at the time of publication, or of anything asserted to be a fact in an earlier privileged statement.
The puzzle is: can a person (the commentator) publish a statement of opinion, indicating in the statement a basis for it which is wholly false and unprivileged, and then successfully defend the opinion on the basis of some quite different fact, or some earlier privileged statement of a quite different fact?
Obviously this would encourage defendants to fish about for some old or unremarkable fact, or some old privileged publication, which some honest, but unreasonable and prejudiced, person could have regarded as supporting the comment.
Yet the wording of the Act, particularly the word “any” emphasized above, suggests that this is the position. Indeed Dr Matthew Collins, in his recent very helpful book on Defamation, suggests that it is inescapable.
I think otherwise, for three main reasons. (1) I think the wording is capable of supporting a conclusion that the basis of the opinion indicated by the commentator in the statement must, on a broad and generous view, be the basis on which the statement is defended, as the possible view of an honest person. Indeed, I think that is arguably slightly the better reading of the language of the section. (2) Dr Collins’s view would be a radical change, yet the parliamentary materials, in particular the Explanatory Notes at para. 22, say that conditions 2 & 3 are intended to “retain the broad principles of the current common law defence”. (3) If Dr Collins’s reading of the section is correct, it doesn’t make any sense. It is a licence to mislead readers – and deliberately so, as long as the commentator holds the opinion on some basis, which does not have to be reasonable or even proper – and a licence to fish for defences after the event. What was the point of the statutory requirement to indicate the basis of the opinion, if it was to be wholly irrelevant whether that basis is, to any extent, true (or privileged), or in any way sufficient to support an honest opinion?
Qn: Do you think any of the new statutory defences have changed the way that lawyers are advising their clients?
Yuli: In terms of the new s.4 defence of publication on matter of public interest, I question whether this has yet had any great impact on the way that journalists are being advised. The change of emphasis to ‘reasonable belief’ and the broadness of the new wording has arguably made it more difficult for journalists and lawyers to understand the parameters of the defence, at least for the time being. In retrospect, the concrete guidance that was provided in cases like Reynolds and its derivative jurisprudence, though comparatively prescriptive, provided an element of certainty when advising on the newsroom floor.
Of course, the hope for defendants is that the courts will be more flexible in their interpretation of the defence, but until that is explicitly confirmed by judges in the courts, lawyers and journalists are likely to continue applying the previous Reynolds/Flood principles as their compass.
Jonathan: In relation to s.5, the website operators defence, and its associated Regulations (SI 2013 No 3028), I am sure that many lawyers have already advised their hosting, moderating and service provider clients that the Act offers them another layer of defence against liability where content has been generated by a user, as opposed to the website operator itself. Indeed, I have attended seminars this year arranged by lawyers precisely to put this message across. However, I am not sure to what extent this has yet been taken up, by an industry that actually already has available to it a number of similar lines of defence: the common law rules on responsibility for publication, Bunt v Tilley, Godfrey v Demon Internet, section 1 of the 1996 Defamation Act, the Electronic Commerce (EC Directive) Regulations 2002, and so on. I have heard reservations expressed about the level of complexity perceived in the Regulations, meaning that website operators may at the outset at least be reluctant to expend resources putting in place processes to engage the defence. This is going to be a part of the Act where only time will tell if it makes any real difference, the alternative being that it could prove largely redundant out of a lack of use.
Further information on the 5RB Conference can be found here