UK: The Defamation Act 2013: It’s Not All Change… But It’s Now In Force At Last

Last Updated: 11 February 2014
Article by Nick Armstrong

The Defamation Act 2013 came into force on 1 January 2014.

Its aims were summarised by Lord McNally, Justice Minister:

"The previous law on libel cases had been criticised as being antiquated, costly and unfair, which resulted in a chilling effect on freedom of expression and the stifling of legitimate debate.

The Defamation Act 2013 ... will overhaul the libel laws in England and Wales and bring them into the 21st century, creating a more balanced and fair law."

There has been considerable debate about how much the new Act will change things in practice. Claimant lawyers have been seeking to play down its likely impact, stressing that it largely codifies existing judge-made law, and deals with some areas (like "libel tourism") that they say had become really only theoretical problems. Freedom of expression campaigners have welcomed the Act. The Press Gazette said: "Journalists are set to have greater protection from being sued for libel".

Much will of course depend on how the judges implement the provisions of the 2013 Act once cases start to come before them.

Possibly the most important practical change is in section 1, which introduces a "serious harm" threshold for defamation complaints.

To be the subject of a defamation action, a statement will have to have caused, or be likely to cause, "serious harm" to the reputation of the claimant.

The concept of libel actions which are trivial being struck out had already been an established principle of case law but section 1 is intended to 'raise the bar' (to use the Justice Ministry's phrase) as to what constitutes a viable libel complaint.

There is specific focus on corporate claimants: section 1(2) states that "harm to the reputation of a body that trades for profit is not "serious harm" unless it has caused or is likely to cause the body serious financial loss". This does not mean a company will have to prove specific financial loss before being allowed to sue, but it does signal a greater emphasis at the outset of a complaint on whether serious financial loss is a likelihood as a result of the publication complained about by the company.

As such, the new Act will tip the balance in favour of freedom of expression about corporate activities – i.e. it restricts the ability of corporate entities to use the fear of libel proceedings to silence their critics.

In practice, section 1 is likely to enable media organisations and social media participants to operate with greater confidence that trivial libel complaints will be fewer in number and where they arise, can be rebutted more robustly and cheaply.

The Act puts the defences of truth, honest opinion and publication on a matter of public interest into statutory form (sections 2, 3 & 4)

The corresponding common law defences (previously called justification, fair/honest comment and the Reynolds defence) are abolished. This appears to the most farreaching reform of all.

However it seems that the sections are intended to replicate / simplify the law as it was, not change it. As with all the other sections, time will tell whether the way the judges interpret the Act in specific cases marks any real shift from the approach to date. It is unlikely that much will change in effect.

The Act sets out a new process dealing with online posts which will provide a defence to website operators if they are not the author of the post and it is possible for the claimant to identify the person who posted the statement (section 5)

Detailed regulations came into force on 1 January 2014 making the practical application of this defence very complex, in particular about what constitutes a notice of complaint, and what the operator must to do to equip the complainant with identification details of the person who made the relevant posting. The website operator will have to respond promptly to notices of complaint in order to have the benefit of this defence.

The 'identification' provisions are designed to minimize the need for complainants to take time-consuming and costly steps to discover the identity of an anonymous poster. However, the complexity of the section 5 defence suggests that, in order to benefit, website operators would need to have in place a system, manned at least 5 days a week by people who know their way around the Regulations, for dealing with Notices of Complaint in due time, especially in view of the short timescales for responding. In practice, it seems more likely at first sight that the whole section 5 process is so bureaucratic and onerous, that website operators – certainly in the commercial world - will wherever possible prefer to rely on the other protection available for website operators (see below).

The bottom line is that, rather than going through the convoluted Section 5 procedure, the majority of website operators may well find it more sensible and commercially attractive to respond promptly to any sort of notice of complaint and simply remove the statements complained of.

Promptly removing material in this way will usually remove any realistic danger of being liable in defamation.

It is likely to be the operators of academic and similar websites, where the importance of free speech is more crucial, who will find section 5 most useful – as long as they can make the necessary arrangements for steps to be taken in accordance with the time-scales laid down.

Website moderation

The only exception might be where a website operator carries out detailed prior moderation of posts on the site. In these circumstances, the operator could well be considered to be a 'publisher' and hence excluded from the alternative defences set out in the Appendix below.

Section 5 on the other specifically provides in subsection 12 that "moderation by the operator of the website of comments posted on it by others, does not invalidate the defence" under Section 5.

This is likely to be a small minority of sites. Reactive moderation coupled with the protection of the alternative defences set out below in the Appendix, is likely to remain the preferable approach for most website operators.

The Act makes additions to the privilege provisions of the Defamation Act 1996; in particular, extending the protection of privilege to peer-reviewed scientific and academic journals (sections 6 & 7)

The latter responds to lobbying by the scientific community

The Act establishes a "single publication rule" (section 8)

This is a significant provision, changing the approach to online material: it will be deemed published once when originally posted (not each and every time it is accessed by readers), the effect being that the 1 year limitation period now runs from the date of that first posting.

The Act limits the English court's jurisdiction in defamation actions against those not domiciled in the UK or another EU member state (section 9)

The court will have to be satisfied that, of all the places in which the statement complained of has been published by a foreign-domiciled defendant, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.

The aim is to simplify the rules governing libel actions with little real connection to this country. The approach reflects the one the judges had worked out already, to deal with so-called "libel tourism" - but does not address the situation where a foreign-domiciled claimant seeks to sue for libel in England.

The Act provides that libel trials shall be without a jury unless the court orders otherwise (section 11)

This in fact enacts the trend in the judges' approach over the last few years.

The Act gives the court new powers where it has given judgment in a defamation action, to make an order compelling (1) publication of a summary of the judgment; and / or (2) removal of defamatory statements from a website or from distribution (sections 12 & 13)

Since only a small minority of defamation complaints result in judgment (most cases being settled) this may not be of enormous practical effect.

Conclusion

The changes which the Act will bring in will not necessarily signal a radical change of direction in the way defamation law works in practice.

But as well as favouring freedom of expression in a number of ways, codification of significant elements of the law and the simplification of the rules in some areas may lead to an important move away from technicality towards more straightforward resolution of complaints and hence the reduction in complexity and cost which has discredited English libel law hitherto.

Appendix: Other protection for website operators

Apart from section 5 of the Defamation Act 2013, the following are available:

Defamation Act 1996, section 1 remains in force

(1) In defamation proceedings a person has a defence if he shows that—

(a) he was not the author, editor or publisher of the statement complained of,

(b) he took reasonable care in relation to its publication, and

(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.

AND

(3) A person shall not be considered the author, editor or publisher of a statement if he is only involved –

...

(c) in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form;

and

(e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.

There is a more or less parallel defence under the European Ecommerce Regulations (a European Directive enacted into English law) under which hosting intermediaries e.g. internet service providers, shall not be liable if they do not have actual knowledge of unlawful activity.

The 2013 Act itself has another section designed to protect website operators:

The Defamation Act 2013 section 10

Section 10(1) says: "A court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher.

The words "author", "editor" and "publisher" have the same meaning as in section 1 of the Defamation Act 1996, and the majority of website operators may well be able to argue that they are not "publishers" – at least until they are put on notice of a complaint. The Court of Appeal in Tamiz v Google Inc [2013] EWCA Civ 68, concerning Google's "Blogger" service, ruled that the website operator there could well be regarded as a "publisher" after being put on notice of a complaint, but not before.

Conclusion

The effect of a website operator receiving any notification of a defamation complaint (especially a detailed Notice of Complaint under the new section 5) is thus arguably to make the website operator a "publisher" with potential defamation liability i.e. the 1996 Act section 1 and 2013 Act section 10 defences would be lost.

Hence, responding to any notice by prompt removal of the item which is the subject of the complaint remains the safest and most commercial option, as it was before the Defamation Act 2013 came into force.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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