October 19, 2011
Bill Joint Committee urges bolder reform
Report on Government's draft Defamation Bill out today
The Joint Committee Report on the Government’s draft Defamation Bill has urged further reform, targeting the issue of high costs in defamation cases.
The Joint Committee’s report welcomed many of the reforms which had made their way into the draft bill but described the current draft as ‘modest’ but ‘long overdue’, indicating that sustained lobbying from libel reform groups was influencing debate. Four principles influenced the Report: the inaccessibility of the law to the ordinary citizen, the adaptability of the law of defamation to modern technologies, the high cost of litigation and striking the right balance between competing interests of free expression and reputation.
It was the pronounced view of the Jount Committee that the Goverment should give greater strategic thought to how defamation law interracted with privacy law and civil litigation funding more broadly rather than "finding itself buffeted by successive tabloid or online revelations and controversial court decisions."
The report can be accessed from the Committee’s website.
Amongst the Report’s principal recommendations are:
• The presumption in favour of jury trial should be reversed except for cases involving the credibility of senior public figures as the presumption in favour works against the goals of making the law simpler and more accessible and reducing costs through early resolution.
• Including in the Bill a threshold test regarding a statement’s propensity to cause "serious and sunstantial harm".
• The power for Courts to order publication of their judgments or summaries of them.
• Amendments to the defences of justification, honest opinion and responsible publication on a matter of public interest to make the law clearer, and placing them on a statutory footing.
• Extending statutory qualified privilege to protect scientific and academic journal publication and communications between constituents and MPs.
• The publication of additional guidance on how the Courts should interpret the draft Bill provisions on libel tourism.
• A single publication rule for material in the public domain.
• Strict adherence to the Pre-Action Protocol for Defamation claims and introduction of a presumption of ‘early neutral evaluation’ by an independent third party, a proposal to be explored by The Ministry of Justice.
• Encouraging website owners and controllers to moderate user-generated content.
• Introducing prompt mandatory complaint notices for online material to be displayed alongside defamatory content, with provisions for application for "take down orders" based on paper submissions. Non-compliance by website operators would open them to defamation claims on normal principles.
• Automatic take down for anonymous internet statements unless the author consents to identification to the complainant, with exception made for applying for "leave up" orders to protect whistleblowers and other public interest material.
• Threshold test of likelihood of substantial financial loss for corporate claimants, discounting share price fluctuations and injury to goodwill.
Much in the draft Bill and the Joint Committee’s proposed amendments reflect changes already underway in the common law, particularly as regards mode of trial and threshold tests for harm. Many of the recommendations regarding cost-capping and active costs management are already in place as part of the defamation costs management pilot scheme. The Bill and the Report appear to break new ground as regards the resolution of complaints about statements published on the internet, especially anonymously.