The Defamation Act 2013 – A briefing for Health Sector Staff

The Defamation Act 2013 came into force on 1st January 2014 and was intended by the Government to shift the balance between free speech and the right to protect reputation, in favour of free speech. In particular the Government wanted to reverse the so-called “chilling effect” of current libel laws on legitimate debate and freedom of expression. The measures are aimed at protecting amongst others, journalists, scientists and academics from facing unfair legal threats for making fair criticisms of companies, individuals or products. Staff preparing reports and records in the health sector may on occasion face allegations of defamation and the briefing summarises the key provisions. These are also of relevance to those providing academic papers.

KEY MEASURES INCLUDE:

A new serious harm threshold before claimants can issue proceedings.

A new statutory defence of “truth” to replace the defence of “justification”.

New statutory defence of honest opinion. This replaces the common law defence of fair comment.

New defence on a matter of public interest.

New defence for the operators of websites in respect of statements posted on the website.

Protection for peer-reviewed statements in scientific or academic journals etc

Extension of privilege for reports of Court proceedings.

Important change to the limitation period of one year now limited to one year from the date of the first publication of the article.

Measures to deal with “libel tourism” intended to prevent cases which only have a tenuous links to England and Wales, being brought in this jurisdiction.

Actions against persons who are not the author/editor of claims now limited.

Trial to be without a jury unless court orders otherwise.

Power for the Court to order a summary of its judgment to be published.

Background

The civil law on defamation has developed through common law over many years but has been supplemented from time to time by statute, most recently by the Defamation Act 1996. The Defamation Act 2013 (the Act) aims to provide better protection to those who express their opinions and is now in force in England and Wales. Claimants will now have to show that they have suffered serious harm before they can issue proceedings. The Act also addresses so called “libel tourism” and also the chilling effect that libel laws have had on legitimate debate and criticism made by journalists, scientists and academics. The Government’s intention was to provide better protection for people publicly expressing opinions and to that extent the Act does shift the balance in their favour.

Summary of Measures
Section 1: Serious harm

Sub-section (1) of the Act provides that the statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the Claimant. This provision extends to a situation where publication is likely to cause serious harm in the future (where the harm has not yet occurred at the time the action defamation commences). Sub-section (2) stipulates that “serious harm” for a body that trades for profit means serious financial loss. In essence, this section makes it harder to bring a claim in that only cases involving serious harm to a Claimant’s reputation can now be brought. So we may expect to see more attempts to strike out claims early by Defendants on the ground set out above.

Section 2: Truth

This section simplifies the common law defence of justification with a new statutory defence of truth. Sub-section (1) provides that the Defence will apply where a Defendant can show that the reputation conveyed by the statement is substantially true. In essence, this reflects the current law, which is that the Claimant has to establish the substantial truth of the sting of the libel, but does not need to prove that every single word published was true.
Section 3: Honest opinion
Fair comment has now been abolished and is now replaced by a new defence of honest opinion. Again, this section broadly continues the position under current law but simplifies certain elements. The defence of honest opinion will apply where the Defendant can show that three conditions are met:

(i) That the statement was one of opinion.

(ii) That the statement complained of indicated, whether in general or specific terms, the basis of the opinion and;

(iii) That an honest person could have held the opinion on the basis of any facts which existed at the time the statement complained of was published, or anything said to be a fact in a privileged statement published before the statement complained of. Interestingly, there is no requirement here that the comment be in the public interest, which was the position before the Act. The Government intended here to avoid some of the complexities which have arisen in case law particularly over the extent to which the statement has to explicitly or implicitly indicate the facts on which the opinion was based.

In accordance with current law, the statement has to be recognisable as comment as distinct from an imputation of the fact. In short, the defence of honest opinion should serve to protect honest opinions more effectively than the fair comment defence.

Section 4: Publication on matters of public interest

This creates a new defence to an action for defamation of publication on a matter of public interest. This is intended to reflect the existing common law defence established in Reynolds v. Times Newspapers. The defence will be available when the Defendant can show that the statement complained of is a statement on a matter of public interest and that he or she reasonably believed that publishing the statement complained of was in the public interest.

The defence has regard to the common law “doctrine of reportage” which really means the neutral reporting of attributed allegations rather than their adoption by a newspaper.

This means that where the doctrine applies, the defendant does not need to have verified the information reported before publication because the way that the report is presented provides a balanced picture.

It is worth noting that the public interest defence is available whether the statement complained of is one of fact or opinion.

Section 5: Operators of websites

This section creates a new defence for operators of websites in respect of statements posted on the website. The defence will apply if an operator can show that they did not post a statement on the website but the defence will be defeated if the claimant is able to show that:

(i) It was not possible for the claimant to identify the person who posted the statement;

(ii) The Claimant gave the operator a notice of complaint in relation to the statement and

(iii) The operator failed to respond to the notice of complaint in accordance with the provisions set out in any regulations to be made by the Secretary of State.

It is important to note that for the purposes of identifying the person who posted the statement, the claimant would need sufficient information to bring proceedings against that person for this to apply.

In summary a website operator is likely to have a defence in relation to a defamatory statement provided that the claimant is in a position to identify the person posting the defamatory statement or where the operator has not received a notice of complaint or where the owner on receipt of a notice of complaint complies with the regulations which typically would mean taking down the posting and/or providing the Claimant with details of the person posting the defamatory statement. It is worth noting that the defence will be defeated if the claimant is able to show that the website operator acted with malice in relation to the posting of the statement. However the defence is not defeated by reason only of the fact the operator moderates the statements posted on its website by others.

Section 6: Peer-reviewed statements in scientific or academic journals etc

This creates a new defence of qualified privilege relating to peer-reviewed material (whether published electronically or not) and academic journals. The defence will apply if the statements relate to a scientific or academic matter which has been the subject of an independent review of the statement’s scientific or academic merit which was carried out either by the officer of the journal or by others with expertise in the particular scientific or academic matter concerned.

The point of this is to reflect key aspects of a responsible peer-review process. As with other form of qualified privilege, privilege is lost if the publication is shown to be made with malice.

Section 7: Reports protected by privilege

The Act provides an extension of the qualified privilege defence for fair and accurate reports of proceedings of scientific or academic conferences.

Section 8: Single Publication Rule

This is an important change as the limitation period for defamation claims is one year from the date on which the cause of action accrued. Under the Act the limitation period is now one year from the date of the first publication of the article. This replaces the long-standing position that each publication of defamatory material gives rise to a separate cause of action which is subject to its own one-year limitation period. However this rule does not apply in relation to a subsequent publication which is materially different from the manner of the first publication.

Section 9: Action against a person not domiciled in the UK or in the EU

This section is intended to prevent “libel tourism” cases which have a tenuous link to England and Wales but are brought in this jurisdiction. In short the Act states that “a Court does not have jurisdiction to hear and determinate an action unless the Court is satisfied that, of all the places in which the statement complained has been published, England and Wales is clearly the most appropriate place in which to bring an action”. In effect the Court will consider the overall position as to where would be most appropriate for a claim to be heard and it is likely that the Court will take into account various factors including the amount of damage to the Claimant’s reputation in this jurisdiction compared to other places and the extent to which the publication was targeted at a certain readership in this jurisdiction. Other considerations will be the number of readers in one jurisdiction compared to another, and whether the claimant is likely to receive a fair hearing elsewhere.

Section 10: Action against the person who is not the Author/Editor etc

The Act limits the circumstances in which an action can be brought against someone who is not the primary publisher of an allegedly defamatory statement.

Comment

The changes to the law are intended to encourage free speech and reduce the risk of defamation proceedings being brought. However, when action is needed, the Act removes the presumption in favour of a jury trial in defamation cases. This means that most defamation actions are likely to be determined more quickly and with less cost.

Dominic Green
e: dominic.green@rlb-law.com
t: 020 7227 7411
April 2014
© RadcliffesLeBrasseur


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.