Defamation Act 2013

Defamation Act 2013

Parliament of the United Kingdom
Long title	An Act to amend the law of defamation.
Citation	2013 c 26
Introduced by	Rt Hon Kenneth Clarke Rt Hon Lord McNally
Territorial extent	England and Wales only, except that sections 6 and 7(9) and 15 and 17 and, in so far as it relates to sections 6 and 7(9), section 16(5), also extend to Scotland
Dates
Royal assent	25 April 2013
History of passage through Parliament
Text of statute as originally enacted
Revised text of statute as amended

The Defamation Act 2013 (c 26) is an Act of the Parliament of the United Kingdom, to reform English defamation law on issues of the right to freedom of expression and the protection of reputation. It also comprises a response to perceptions that the law as it stood was giving rise to libel tourism and other inappropriate claims.

The Act changed existing criteria for a successful claim, by requiring claimants to show actual or probable serious harm (which for for-profit bodies is restricted to serious financial loss), before suing for defamation in England or Wales, setting limits on geographical relevance, removing the previous presumption in favour of a trial by jury, and curtailing sharply the scope for claims of continuing defamation (in which republication or continued visibility comprises ongoing renewed defamation). It also enhanced existing defences, by introducing a defence for website operators hosting user-generated content (provided they comply with a procedure to enable the complainant to resolve disputes directly with the author of the material concerned or otherwise remove it), and introducing new statutory defences of truth, honest opinion, and 'publication on a matter of public interest' or privileged publications (including peer reviewed scientific journals), to replace the common law defences of justification, fair comment, and the Reynolds defence respectively. However, it does not quite codify defamation law into a single statute.

The Defamation Act 2013 applies to causes of action occurring after its commencement, which is expected to be later in 2013; old libel law will therefore still apply to many 2014 - 2015 defamation cases where the events complained of took place before commencement.

Changes and repeals

The Act changes a number of Defamation procedures. All defamation cases under the Senior Courts Act 1981 in the Queens Bench Division, and the County Courts Act 1984, which were “tried with a jury”, unless the trial requires prolonged examination of documents &c, are now to be “tried without a jury” unless the court orders otherwise. Such cases will now be referred through a Defamation Recognition Commission (DRC) to a new Independent Regulatory Board (IRB), to provide arbitration services. The Courts will then take into account, when awarding costs and damages, whether either party in a dispute has chosen not to use the arbitration service. A successful party would also be required to pay all of the proceedings costs, if such a party unreasonably refused to use the arbitration service. Judgment awards of exemplary damages, where a defendant is guilty of breach of a defendant’s rights, can take into account whether either party refused to use, or join the arbitration service. Courts are now to take into account whether defendant first sought advice from (IRB) before publication.

• The common law defence of justification is abolished, as such section 5 of the Defamation Act 1952 (justification) is repealed.
• The common law defence of fair comment is abolished, as such, section 6 of the Defamation Act 1952 (fair comment) is repealed.
• The common law defence known as the Reynolds defence is abolished.
• Section 8 of the Rehabilitation of Offenders Act 1974 (defamation actions) is amended.
• The Slander of Women Act 1891 is repealed.
• The publication of a statement that conveys the imputation, that a person has a contagious or infectious disease, does not give rise to a cause of action for slander, unless the publication causes the person special damage.

Proposed defences

Requirement of serious harm: "A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant".

Truth: It is a defence for defamation to show the imputation in the statement complained of is substantially true. If one or more of the imputations is not true, the defence does not fail if the imputations not shown to be true, do not seriously harm the claimant’s reputation. The common law defence of justification is abolished, as such section 5 of the Defamation Act 1952 is repealed.

Honest opinion: It is a defence for defamation, to show the statement complained of was a statement of opinion. That it indicated in general or specific terms, the basis of the opinion. That an honest person could have held the opinion on any fact which existed when the statement was published, including any fact in a privileged statement that was pre-published. The defence is defeated if the claimant shows the defendant did not hold the opinion. Opinion does not apply where the statement was published by the defendant, but made by another person (the author), and in such a case the defence is defeated if the defendant knew, or ought to have known, the author did not hold the opinion. A statement is a “privileged statement” if the person responsible for its publication could prove it was a publication on matter of public interest, or was a peer-reviewed statement in scientific or academic journal; Defamation Act 1996 reports of court proceedings protected by absolute privilege, or under other reports protected by qualified privilege. The common law defence of fair comment is abolished, as such, section 6 of the Defamation Act 1952 is repealed.

Public interest: It is a defence to show the statement complained of was, or formed part of a matter of public interest, and a publication was reasonably believed to be in the public interest. If the statement was a part of a dispute to which the claimant was a party, the court determines whether it was in the public interest, and must disregard the defendants omissions to verify the truth of the imputation. In determining a reasonable belief of public interest, the court must make allowance for editorial judgment. For the avoidance of doubt, the defence may be relied upon irrespective of whether it is a statement of fact or a statement of opinion. The common law defence known as the Reynolds defence is abolished.

Peer-reviewed statement in scientific or academic journal: The publication of a statement in a scientific or academic journal (whether published in electronic form or otherwise) is privileged if the statement relates to a scientific or academic matter. That before it was published an independent review of the statement’s merit was carried out by the journal's editor, and persons with expertise in the matter concerned. Where the statement is privileged, any assessment, extract or summary of the statement’s merit is also privileged. A publication is not privileged if it is shown to be made with malice. Nothing to be construed as protecting the publication of matter prohibited by law.

Websites

Operators of websites: Action against a website operator, on a statement posted on the website, it is a defence to show that it was not the operator who posted the statement on the website. The defence is defeated if it was not possible for the claimant to identify the person who posted the statement, or the claimant gave the operator a notice of complaint and the operator failed to respond in accordance with regulations. A claimant can “identify” a person only if they have sufficient information to bring proceedings against the person. Regulations (made by the Secretary of State) may determine the action to be taken in response to a notice of complaint, such as identity, contact details and time limits for removals, subject to the courts discretion. A notice of complaint must specify the complainant’s name, the statement concerned and explains why it is defamatory, and specifies where on the website it was posted. Where a court gives judgment for the claimant in an action the court may order the defendant to publish a summary of the judgment. Regulations may make provision in which a notice, which is not a notice of complaint, is to be treated as a notice of complaint. The defence is defeated if the claimant shows that the operator of the website acted with malice in the posting of the statement. The defence is not defeated if the website operator moderates statements posted on it by others.

Proposed jurisdiction

Non-natural persons: Actions for defamation by (a) body corporate (b) other non-natural legal persons trading for profit or (c) trade associations representing organisations trading for profit. Court permission to be obtained to bring an action in these sections. Application to be struck out, unless the body corporate can show the publication or matters complained of has caused, or is likely to cause, substantial financial loss to the claimant. Non-natural persons performing a public function do not have an action in defamation against any statement concerning that function.

Action against a person not domiciled in the UK or a Member State: Action for defamation against a person who is not domiciled in the United Kingdom, in another Member State, or in a state being a contracting party to the Brussels Regulations of the Lugano Convention which was the Convention on jurisdiction, recognition and enforcement of judgments in civil and commercial matters, between the European Community and the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation and the Kingdom of Denmark signed on behalf of the European Community on 30th October 2007. A court does not have jurisdiction to hear and determine any action, unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate. A person is domiciled in the United Kingdom or in another Member State if the person is domiciled there for the purposes of the Brussels Regulation.

Opposition

Lord Lester said these controversial amendments to the Bill would damage free speech and break European human rights laws. He accused Labour of "hijacking" the legislation to force an implementation of the Leveson Inquiry plans for press regulation. The Lord Puttnam amendment would mean newspapers who do not join the arbitration service could be punished by courts awarding ruinous damages and costs. Lord Lester said this form of "prior restraint" was only used in a handful of former Soviet states, to introduce "a form of coercion I have not seen in any democratic country". Prime Minister David Cameron also warned that "The scheme would be totally incompatible with human rights and free speech. Instead of self-regulation, you would have a coerced system of arbitration."

Northern Ireland

At the behest of Finance Minister Sammy Wilson, the Northern Ireland Assembly refused to extend "Legislative Consent" to the new Defamation Act, meaning the old UK laws still apply there. Proponents of the law and Irish authors have warned that Belfast might replace London as the new capital for "libel tourism". Additionally, there are worries that UK newspapers would either need to end Northern Irish editions, or else be forced to comply by the old guidelines in their stories.

See also

• English defamation law
• Censorship in the United Kingdom
• Libel tourism
• Civil Procedure Rules
• Civil procedure in England and Wales
• Justice and Security Act 2013
• Jurisprudence
• Human rights
• Political science
• Philosophy of law
• Rule of law
• Rule according to higher law
• Royal Succession Bills and Acts: System of Bill and Act procedures through the UK House of Lords and House of Commons.

External links

• Defamation Act 2013 on the Legislation.gov.uk website.
• Halsbury's Statutes
• The Libel Reform Campaign
• The Competing Right of Freedom of Speech and Reputation
• The Defamation Act 1952, as amended from the National Archives.
• The Defamation Act 1952, as originally enacted from the National Archives.
• Encyclopaedic project of academic initiative in JurisPedia