While there are lines, it is very easy for journalists to cross them due to the many grey areas within existing law. Various celebrities and defendants have, in the past, been awarded extensive damages for papers defamatory or libellous statements. Frankie Boyle for example, was awarded £54,650 in damages after a High Court jury concluded that the Daily Mirror had libelled him by describing him as ‘racist’.
Consequently, it seems that London has become the ‘libel’ capital of the world, with foreign nationals even bringing cases to the UK that have nothing to do with British publications.
Thus due to the awarding of high damages and apparent success rates for claimants, the UK is seen as a claimant friendly country. Since the revelation of phone hacking and the subsequent publication of the Leveson report – press standards, regulation, libel and breach of privacy have all been under substantial scrutiny.
Therefore the passing of the Defamation Act 2013 has been heralded as a win for libel reform. The act was driven by calls for reform in many aspects including; reform of defamation defences for journalists, publishers and internet service providers; rules regarding repetition of defamatory content through online re-publishing, and prevention of so-called ‘libel tourism,’ to name but a few.
But will the new act have any effect?
It appears it may well do with October 2013 seeing High Court judges throwing out two cases brought by wealthy foreigners concerning claims published abroad. Seemingly curbing such use of the English courts.
Throwing out one of the cases Mr Justice Dingemans described the two-year libel claim as an; ‘abuse of process’, adding that it ‘really has nothing to do with his reputation in England and Wales’. He went on to add that allowing the case to proceed risked ‘disproportionate and unnecessary interference with freedom of expression’. David Price QC, said the two judgments heralded the end of libel tourism: ‘Judges are emphasising that claimants must show significant damage to their reputation in England.’
So what is defamation?
‘Any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.’
Defamation may be a criminal or civil charge. It encompasses both written statements, known as libel, and spoken statements, called slander. Thus in essence if what you write or broadcast about an individual or company may lower them the estimation of right thinking people; causes them to be shunned or avoided; disparages them in their business, trade or profession or explores them to hatred it is likely a jury will find you to be defamatory or libellous in your work.
While the publication must have been printed and the defamatory statement identify an individual or company it only needs to set ball rolling, it doesn’t have to be direct to be libel. The case of Lord McAlpine is a key example of this.
Defamation Act 2013- what difference does it really make?
But journalists are set to have greater protection under the rules governing the new Defamation Act 2013. The bill received RoyalAssent on 25th April 2013 and is now an act of law. Although it must be noted it is not yet enforced and while it is promised to be by the end of the year, as it stands now current cases will still be judged under the old law.
Those behind the new law say that the Defamation Act 2013 will simplify the law, raising the bar for corporate litigants, who will now have to think before they decide to sue. It is also said to clarify and re-enforce libel defences. The Index on censorship commenting that the Act is a; ‘victory for free speech’. It appears the thinking behind the bill is to reform the law on defamation, so that a fairer balance is struck between the right of freedom of expression and the protection of reputation.
Key areas of change and what do they mean?
Section 1 of the new act contains a serious harm requirement, caused or likely to be caused, for defamation. Sections 2-7 contain defences in relation to truth, honest opinion, publications on matters of public interest, and a defence for operators of websites. They also contain a defence of qualified privilege for peer reviewed statements in scientific or academic journals, and amendments to absolute and qualified privilege in the Defamation Act 1996.
Section 8 contains a single publication rule with a one year limitation period to preclude actions for multiple publications of the same material.
Sections 9 and 10 make provision in relation to jurisdiction with a view to reducing claims being brought with a limited link to England and Wales.
Section 11 provides that defamation trials are to be without a jury unless the court orders otherwise. Section 12 makes provision pertaining to the court power to order a summary of its judgment to be published and Section 13 concerning the order to remove a statement or cease distribution.
- Includes a requirement for claimants to show that they have suffered serious harm before suing for defamation. The statement must cause “serious harm,” for the purposes of this section 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. Thus it has raised the bar and may prevent cases such the legendary McDonalds libel case or the Victoria Beckham and more go the way that of the Elton John case.
- Removes the current presumption in favour of a jury trial. Section 11 of the new act more or less abolishes juries in defamation cases, which has actually been the case in Scotland for quite some time. This will help in curbing the extensive damages in the civil proceedings that “libel juries” have awarded in the past, such as the Esther Rantzen case. Previously Jury based awards have been considered unpredictable and a lottery on the outcome, thus some clarity and stability in the law is needed and will be beneficial for defendants and claimants alike.
- Introduces a defence of “responsible publication on matters of public interest.” However whether this will have much impact is remain to be seen, as essentially the question of whether the published material is a matter of public interest falls to be decided by the judge. As Lord Hoffman observed “the public tends to be interested in many things which are not of the slightest public interest.” The case of Jameel reinforces that there must be some real public interest in having the material in the public domain. It will also be interesting to see if Judges will now be more in favour of the Reynold’s qualified privilege test. In the past when the Reynolds privilege defence was raised, the courts tended to come down in favour of protecting reputation rather than protecting the right to say something, which turns out to be untrue.
- Provides increased protection to operators of websites that host user-generated content, providing they comply with the procedure to enable the complainant to resolve disputes directly with the author of the material concerned. This means that for web publications there is a defence for operator to show it was not the operator who posted the statement on the website. However what happens in situations where the publisher cannot be found or is anonymous? It would appear that the operator would be found liable in their place. So will the act make any difference for the Internet?
- Introduces new statutory defences of truth and honest opinion to replace the common law defences of justification and fair comment. Truth the Defendant must show imputation conveyed by the statement complained of is substantially true, the Jonathan Atkin case is an example “sword of truth” eventually coming into fruition, however not in the way Atkin would have liked. Honest opinion, which was previously fair comment, means the defendant must show it is an opinion, which could be held by an honest person, based upon a known fact at time of writing. This means even if not true, the supposed defamation can be innocent if honestly thought at time. Thus again it would seem it is time for the courts to start looking upon the Reynold’s qualified privilege test favourably.
Effects on the Internet
Internet and its far-reaching capacity have meant it has not been an easy area to govern within law. There has been an uneasy distinction between traditional publishers such as newspapers and magazines, and internet giants such as Google, whose reach into social media, product sales, user generated content, search and publishing is extensive.
While search engines such as Google compete with traditional newspapers in the way they merge news, they are also service providers, and as such have been offered a new defence under the act. This has been seen by bloggers and the media as a ‘victory for Internet Search Providers’, giving companies like Facebook a defamation defence. Exceptions to this however include if the offending poster cannot be identified, or if the claimant can show that the website operator was notified of a defamatory posting and failed to comply with a procedure. However will this have much use in practice? It seems unlikely there will be circumstances where a poster will be happy to waive anonymity and be sued. Most internet companies do not have the time or resources to look into each problem posting and so opt for the safest option; taking them down straight away. Thus many articles that are taken down now may be perfectly sound, and it is not particularly certain that the new act will aid this problem and enhance freedom of expression over the internet. On top of this making a court application to contest jurisdiction or strike out a baseless claim can take a lot of time, involves a detailed knowledge of court procedures and hefty legal costs.
Companies such as Google earn around $50bn a year, thus it appears a great oversight that Leveson nor the Defamation Act 2013 have properly examined libel laws and procedures in relation to Internet Search Providers. Maybe it is because there is not enough awareness around online defamation lawsuits, which the Lord McAlpine and Sally Bercow case may now bring to light. Nevertheless the majority of cases surrounding restaurants, hotels, small companies may not surround the glitz and the glam of the high profile cases and may be deemed inconsequential but put together they are very significant. It remains important because everything we put on the Internet is forever.
The Defamation Act’s single publication rule limits a claimant to bringing only one action against a defendant when the defamatory statement is repeated, i.e. through blogging or tweeting. Yet it may hold little impact, instead only giving publishers who run archives a bit of comfort that they’re not going to be sued over material from several years ago. Also the reality remains that lawyers will most likely challenge the single publication rule in instances where the content is anonymous or where greater prominence is given to material several years later. For example, finding an old profile, bringing it to life via tweet or blog posting and causing reputation damage in the present.
Therefore will the new Defamation Act have any impact beyond the symbolic?
On the whole, the changes to the law of defamation introduced by the Act will largely favour defendants and significantly assist the defence of libel action. But how eager the courts are to rule in favour of media defendants way well be judged on a case-by-case basis and it will not mean media can get away with being fast and loose with their statements and publications. While an emphasis must be put on freedom of expression and public interest in light of the medias recently shady and unethical practices, it may not be so easy for all defendants to procure the benefits seemingly conferred on them by this new act.