a new era for free speech and publication?
The Queen's speech on Wednesday 9 May
addressed proposals for the long-awaited reform of libel laws in
the UK. The Defamation Bill is hailed by campaigners as necessary
to bring about an end to costly jury trials and 'libel
tourism'. The Bill addresses the threshold of harm test
that claimants must satisfy, places the Reynolds defence on a
statutory footing and implements the "single publication rule",
amongst others issues.
The Defamation Bill caps off an interesting 12
months have for defamation and privacy lawyers, in
which super injunctions hit the press, contempt of court has
been given a new lease of life and damages of £90,000 have been
awarded for defamatory allegations made on Twitter. The
Defamation Bill will be enacted during this Parliamentary session
and is seen as good news for journalists and publishers.
There is, however, a risk that the proposed legislative changes
could upset the delicate balance between existing case law.
The Defamation Bill comes soon after the
recent case of Flood v Times, which has helpfully
clarified the law relating to Reynolds privilege. Arguably,
that decision will give greater clarity to the existing law than
the legislative changes. In the Bill the
Reynolds defence will be renamed the responsible publication
on matter of public interest defence. We must wait to
see whether the Government adopts the Joint Committee's
recommendation that the Bill should expressly repeal the current
common law position. The clarification given in the
Flood will hopefully be used by the courts in interpreting
this defence.
Much of the Defamation Bill codifies existing
law, rather than introduces new elements.
After enactment of the Bill, to bring a claim
a claimant will have to show they have suffered "serious harm" to
their reputation as a result of defamatory remarks made. It is
hoped that placing this test on a statutory footing this will
prevent trivial and vexatious claims being brought. The Joint
Committee initially proposed that claimants must demonstrate
"serious and substantial harm" and we feel the Government has
rightly recognised the difficulties (and the risk of unnecessary
litigation) that may be caused by having both elements included and
therefore it is proposed the test to refer to "serious harm" only.
Whilst this test may still appear to be unduly raising the bar for
claimants in comparison with the current requirements, we consider
that the courts have always been alive to trivial claims and this
change will therefore merely make clearer the existing
principles. Crucially the Bill fails to address the mechanics
for striking out claims, suggesting that parties should rely on the
courts' powers of case management. This could prove to be a
mistake given the current burden on the court system and in high
litigation costs.
The single publication rule is another good
result for publishers, bloggers and tweeters as it means the time
limit for bringing defamation claims runs from the date of the
first publication of the defamatory comments (if the statement that
is republished is substantially the same as the first publication).
This is an important development for those who, for example,
maintain links to archived material on a website. However,
the implication of internet publication remains one of the biggest
gaps in the draft Bill and is a serious issue that needs to be
addressed.
It is positive that Government is attempting
to codify this challenging area of the common law but, unless the
wording of the Bill is clarified, there is scope for unnecessary,
complex and expensive satellite litigation relating to its meaning
and interpretation. The Jackson review that addresses the
'elephant in the room' - on the cost of defamation proceedings – is
also likely to have implications for the impact of the Bill, but
that can wait for another time!
