Defamation Act 2013 – Evolution not revolution
It has been confirmed that changes to UK defamation law will take effect from the start of 2014, following the introduction of the Defamation Act 2013.
The recently published Defamation Act 2013 (Commencement) (England and Wales) Order 2013 (SI 2013/3027), provides that the Act will come into force on 1 January 2014, alongside the Defamation (Operators of Websites) Regulations 2013 (SI 2013/3028).
The new Act and accompanying Regulations will potentially have a material impact on anyone wanting to bring a claim for defamation from 1 January 2014. That said, many of the new provisions merely codify the existing case law and place it on a statutory footing.
We set out below some of the key changes to this area…as well as highlighting the things that are staying the same.
It should be noted that the new Act applies only to publications occurring on or after 1 January 2014. Defamatory statements published before this date will continue to be governed by the Defamation Act 1996.
The new Act will:
Introduce a 'serious harm' threshold
This new threshold 'raises the bar' for claimants looking to bring a defamation action. Those looking to allege defamation will need to show that a statement has caused or is likely to cause, 'serious harm' to the claimant's reputation. In situations where the claimant is a corporate entity, 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 that companies will need to show financial loss at the outset. However, there is a clear move to considering whether serious financial loss is a likely result as a consequence of the statement being made.
The effect of the new 'serious harm' threshold is that parties should be dissuaded from bringing trivial actions for comments that have little or no impact on the individual's/company's reputation or financial position.
Single publication rule
A claimant currently has 1 year from the publication of the defamatory statement to bring a claim. This is a relatively short time limit when compared to the 6 year limitation period for bringing an action for breach of contract and has led to many claimants being 'time barred' from issuing proceedings.
Currently claimants can rely on a loophole to escape the one year limitation deadline where the defamatory comments are published online. In these circumstances the one year limitation period begins to run each time a user accesses the material via the internet.
This exception is abolished under the new Act and replaced with a 'single publication rule.' Under section 8 of the new Act, the clock will start running from the date of first publication to include first posting.
The effect is that claimants need to be ever vigilant to the publication of defamatory statements and proactive in taking action in respect of them. Claimants will no longer be able to rely on a newspaper's online counterpart to base a claim for defamation where the hard copy article was published some time ago.
Online complaints procedure
Section 5 of the new Act, together with the Defamation (Operators of Websites) Regulations 2013 (SI 2013/3028), look to bring about the biggest changes in dealing with defamatory online posts. The aim is to introduce an efficient mechanism for dealing with comments posted by users of blogs and social networking sites such as Facebook, Twitter and Instagram. The primary purpose of these provisions is to reduce the time and costs involved in identifying an anonymous poster.
Under the new regime, the website operator will not be liable for defamatory comments posted on its website, provided they comply with certain requirements. A claimant must send a Notice of Complaint to the website operator, setting out details of the defamatory post.
The website operator is then required to respond to this notice within 48 hours, acknowledging its receipt. The website operator is also required to forward a copy of the Notice of Complaint to the poster within 48 hours of receipt. If the operator has no way of contacting the poster, the operator is required by the Regulations to remove the posts from the website.
The poster has 5 days from the day after the notification was sent to him to respond to the website operator.
- if the poster fails to respond within this period the website operator is required to remove the post from the website and notify the complainant of its removal.
- if the poster responds saying he consents to the post being removed, the website operator then has 48 hours to remove the offending post.
- if the poster responds saying he objects to the post being removed, the website operator must pass on contact details for the poster to the complainant.
In practical terms these changes should bring about a structured way for dealing with online posts. Critically, it shifts the control away from the website operator/poster and back to the complainant.
It should be noted that the specific requirements under the Regulations are complex and we advise that parties looking to send a Notice of Complaint seek professional legal advice on its content to ensure it complies with the Regulations.
Extension of privilege
In certain circumstances it is permissible to publish material which is defamatory:
- absolute privilege is a complete bar to an action for defamation on the basis that the publication was in the public interest and therefore justified. This would include statements made in judicial and parliamentary proceedings or for example statements made to police during criminal investigations which will be protected for public policy reasons.
- qualified privilege applies where the publisher has a legitimate duty to publish information to a third party and the third party has a legitimate reciprocal interest in receiving it, such as an employment reference or a reply to an inquiry. It also covers a reply to a verbal or written 'attack' on someone's character, where the person 'attacked' has a legitimate interest in defending himself and so long as the reply to attack is relevant and proportionate to the original attack.
- Sections 6 and 7 of the new Act extend the privilege provisions under the old Act to include peer-reviewed academic and scientific journals provided certain conditions are met.
- reinforcement of the Existing Law
Justification, fair comment and the Reynolds defence put on a statutory footing
The common law defences of 'justification,' 'fair comment' and the 'Reynolds defence' are replaced with the similarly titled statutory defences of 'justification,' 'truth,' 'honest opinion' and 'publications on a matter of public interest.'
In practical terms, the new statutory defences merely codify the existing case law. The extent to which the Courts are willing to depart from the previous case law is yet to be seen but we do not anticipate a significant departure from previous trends.
In cases where the defamatory statement has been published by a defendant who is not domiciled in either the UK or a Member State under the Brussels Regulation or Lugano Convention (essentially the EU), the claimant will need to show that the UK is clearly the most appropriate forum to hear the claim.
Accordingly, section 9 of the new Act seeks to put an end to claims being issued with little or no connection to the UK.
However, this provision does little more than put the existing common law rule of 'forum non conveniens' on a statutory footing. After all, the courts have for some time retained a discretionary power to order that proceedings should not be brought in the UK where there is some other more appropriate forum to hear the claim. It is therefore not anticipated that section 9 of the new Act will have any considerable impact on the ability to bring a claim in the UK.
Trial by jury
Section 11 of the new Act amends certain provisions of the Senior Courts Act 1981 and the County Courts Act 1984 to remove the presumption of trial by jury in matters of defamation. However, section 11 merely mirrors the view that the Judiciary has taken in recent years.