Defamation Bill

Session 2012 - 13
Internet Publications
Other Bills before Parliament

Defamation Bill

Defamation Bill
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A
Bill
To
Amend the law of defamation.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Requirement of serious harm
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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.
Defences
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Truth
(1)
It is a defence to an action for defamation for the defendant to show that the
imputation conveyed by the statement complained of is substantially true.
(2)
Subsection (3) applies in an action for defamation if the statement complained
of conveys two or more distinct imputations.
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(3)
If one or more of the imputations is not shown to be substantially true, the
defence under this section does not fail if, having regard to the imputations
which are shown to be substantially true, the imputations which are not shown
to be substantially true do not seriously harm the claimant’s reputation.
(4)
The common law defence of justification is abolished and, accordingly, section
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5 of the Defamation Act 1952 (justification) is repealed.
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Honest opinion
(1)
It is a defence to an action for defamation for the defendant to show that the
following conditions are met.

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(2)
The first condition is that the statement complained of was a statement of
opinion.
(3)
The second condition is that the statement complained of indicated, whether in
general or specific terms, the basis of the opinion.
(4)
The third condition is that an honest person could have held the opinion on the
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basis of—
(a)
any fact which existed at the time the statement complained of was
published;
(b)
anything asserted to be a fact in a privileged statement published
before the statement complained of.
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(5)
The defence is defeated if the claimant shows that the defendant did not hold
the opinion.
(6)
Subsection (5) does not apply in a case where the statement complained of was
published by the defendant but made by another person (“the author”); and in
such a case the defence is defeated if the claimant shows that the defendant
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knew or ought to have known that the author did not hold the opinion.
(7)
For the purposes of subsection (4)(b) a statement is a “privileged statement” if
the person responsible for its publication would have one or more of the
following defences if an action for defamation were brought in respect of it—
(a)
a defence under section 4 (responsible publication on matter of public
20
interest);
(b)
a defence under section 6 (peer-reviewed statement in scientific or
academic journal);
(c)
a defence under section 14 of the Defamation Act 1996 (reports of court
proceedings protected by absolute privilege);
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(d)
a defence under section 15 of that Act (other reports protected by
qualified privilege).
(8)
The common law defence of fair comment is abolished and, accordingly,
section 6 of the Defamation Act 1952 (fair comment) is repealed.
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Responsible publication on matter of public interest
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(1)
It is a defence to an action for defamation for the defendant to show that—
(a)
the statement complained of was, or formed part of, a statement on a
matter of public interest; and
(b)
the defendant acted responsibly in publishing the statement
complained of.
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(2)
Subject to subsections (3) and (4), in determining for the purposes of this
section whether a defendant acted responsibly in publishing a statement the
matters to which the court may have regard include (amongst other matters)—
(a)
the nature of the publication and its context;
(b)
the seriousness of the imputation conveyed by the statement;
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(c)
the relevance of the imputation conveyed by the statement to the matter
of public interest concerned;
(d)
the importance of the matter of public interest concerned;
(e)
the information the defendant had before publishing the statement and
what the defendant knew about the reliability of that information;
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(f)
whether the defendant sought the claimant’s views on the statement
before publishing it and whether an account of any views the claimant
expressed was published with the statement;
(g)
whether the defendant took any other steps to verify the truth of the
imputation conveyed by the statement;
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(h)
the timing of the statement’s publication;
(i)
the tone of the statement.
(3)
Subsection (4) applies in relation to the defence under this section if the
statement complained of was, or formed part of, an accurate and impartial
account of a dispute to which the claimant was a party.
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(4)
In determining for the purposes of this section whether the defendant acted
responsibly in publishing the statement complained of, the court must
disregard any omission of the defendant to take steps to verify the truth of the
imputation conveyed by it.
(5)
For the avoidance of doubt, the defence under this section may be relied upon
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irrespective of whether the statement complained of is a statement of fact or a
statement of opinion.
(6)
The common law defence known as the Reynolds defence is abolished.
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Operators of websites
(1)
This section applies where an action for defamation is brought against the
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operator of a website in respect of a statement posted on the website.
(2)
It is a defence for the operator to show that it was not the operator who posted
the statement on the website.
(3)
The defence is defeated if the claimant shows that—
(a)
it was not possible for the claimant to identify the person who posted
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the statement,
(b)
the claimant gave the operator a notice of complaint in relation to the
statement, and
(c)
the operator failed to respond to the notice of complaint in accordance
with any provision contained in regulations.
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(4)
A notice of complaint is a notice which—
(a)
specifies the complainant’s name,
(b)
sets out the statement concerned and explains why it is defamatory of
the complainant,
(c)
specifies where on the website the statement was posted, and
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(d)
contains such other information as may be specified in regulations.
(5)
Regulations may—
(a)
make provision as to the action required to be taken by an operator of
a website in response to a notice of complaint (which may in particular
include action relating to the identity or contact details of the person
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who posted the statement and action relating to its removal);
(b)
make provision specifying a time limit for the taking of any such action;
(c)
make provision conferring on the court a discretion to treat action taken
after the expiry of a time limit as having been taken before the expiry;
(d)
make any other provision for the purposes of this section.
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(6)
Regulations under this section—
(a)
may make different provision for different circumstances;
(b)
are to be made by statutory instrument.
(7)
A statutory instrument containing regulations under this section is subject to
annulment in pursuance of a resolution of either House of Parliament.
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(8)
In this section “regulations” means regulations made by the Secretary of State.
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Peer-reviewed statement in scientific or academic journal etc
(1)
The publication of a statement in a scientific or academic journal is privileged
if the following conditions are met.
(2)
The first condition is that the statement relates to a scientific or academic
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matter.
(3)
The second condition is that before the statement was published in the journal
an independent review of the statement’s scientific or academic merit was
carried out by—
(a)
the editor of the journal, and
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(b)
one or more persons with expertise in the scientific or academic matter
concerned.
(4)
Where the publication of a statement in a scientific or academic journal is
privileged by virtue of subsection (1), the publication in the same journal of any
assessment of the statement’s scientific or academic merit is also privileged if—
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(a)
the assessment was written by one or more of the persons who carried
out the independent review of the statement; and
(b)
the assessment was written in the course of that review.
(5)
Where the publication of a statement or assessment is privileged by virtue of
this section, the publication of a fair and accurate copy of, extract from or
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summary of the statement or assessment is also privileged.
(6)
A publication is not privileged by virtue of this section if it is shown to be made
with malice.
(7)
Nothing in this section is to be construed—
(a)
as protecting the publication of matter the publication of which is
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prohibited by law;
(b)
as limiting any privilege subsisting apart from this section.
(8)
The reference in subsection (3)(a) to “the editor of the journal” is to be read, in
the case of a journal with more than one editor, as a reference to the editor or
editors who were responsible for deciding to publish the statement concerned.
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Reports etc protected by privilege
(1)
For subsection (3) of section 14 of the Defamation Act 1996 (reports of court
proceedings absolutely privileged) substitute—
“(3)
This section applies to—
(a)
any court in the United Kingdom;
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(b)
any court established under the law of a country or territory
outside the United Kingdom;

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(c)
any international court or tribunal established by the Security
Council of the United Nations or by an international agreement;

and in paragraphs (a) and (b) “court” includes any tribunal or body
exercising the judicial power of the State.”
(2)
In subsection (3) of section 15 of that Act (qualified privilege) for “public
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concern” substitute “public interest”.
(3)
Schedule 1 to that Act (qualified privilege) is amended as follows.
(4)
For paragraphs 9 and 10 substitute—
“9    (1)
A fair and accurate copy of, extract from or summary of a notice or
other matter issued for the information of the public by or on behalf
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of—
(a)
a legislature or government anywhere in the world;
(b)
an authority anywhere in the world performing
governmental functions;
(c)
an international organisation or international conference.
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      (2)
In this paragraph “governmental functions” includes police
functions.
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A fair and accurate copy of, extract from or summary of a document
made available by a court anywhere in the world, or by a judge or
officer of such a court.”
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(5)
After paragraph 11 insert—
“11A
A fair and accurate report of proceedings at a press conference held
anywhere in the world for the discussion of a matter of public
interest.”
(6)
In paragraph 12 (report of proceedings at public meetings)—
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(a)
in sub-paragraph (1) for “in a member State” substitute “anywhere in
the world”;
(b)
in sub-paragraph (2) for “public concern” substitute “public interest”.
(7)
In paragraph 13 (report of proceedings at meetings of public company)—
(a)
in sub-paragraph (1), for “UK public company” substitute “listed
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company”;
(b)
for sub-paragraphs (2) to (5) substitute—
    “(2)
A fair and accurate copy of, extract from or summary of any
document circulated to members of a listed company—
(a)
by or with the authority of the board of directors of
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the company,
(b)
by the auditors of the company, or
(c)
by any member of the company in pursuance of a
right conferred by any statutory provision.
      (3)
A fair and accurate copy of, extract from or summary of any
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document circulated to members of a listed company which
relates to the appointment, resignation, retirement or
dismissal of directors of the company.

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      (4)
In this paragraph “listed company” has the same meaning as
in Part 12 of the Corporation Tax Act 2009 (see section 1005 of
that Act).”
(8)
In paragraph 14 (report of finding or decision of certain kinds of associations)
in the words before paragraph (a), for “in the United Kingdom or another
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member State” substitute “anywhere in the world”.
(9)
After paragraph 14 insert—
“14A
A fair and accurate—
(a)
report of proceedings of a scientific or academic conference
held anywhere in the world, or
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(b)
copy of, extract from or summary of matter published by
such a conference.”
(10)
For paragraph 15 (report of statements etc by a person designated by the Lord
Chancellor for the purposes of the paragraph) substitute—
“15   (1)
A fair and accurate report or summary of, copy of or extract from,
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any adjudication, report, statement or notice issued by a body, officer
or other person designated for the purposes of this paragraph by
order of the Lord Chancellor.
      (2)
An order under this paragraph shall be made by statutory
instrument which shall be subject to annulment in pursuance of a
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resolution of either House of Parliament.”
(11)
For paragraphs 16 and 17 (general provision) substitute—
“16
In this Schedule—
“court” includes—
(a)
any tribunal or body established under the law of any
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country or territory exercising the judicial power of
the State;
(b)
any international tribunal established by the Security
Council of the United Nations or by an international
agreement;
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(c)
any international tribunal deciding matters in dispute
between States;
“international conference” means a conference attended by
representatives of two or more governments;
“international organisation” means an organisation of which
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two or more governments are members, and includes any
committee or other subordinate body of such an
organisation;
“legislature” includes a local legislature; and
“member State” includes any European dependent territory of
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a member State.”
Single publication rule
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Single publication rule
(1)
This section applies if a person—

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(a)
publishes a statement to the public (“the first publication”), and
(b)
subsequently publishes (whether or not to the public) that statement or
a statement which is substantially the same.
(2)
In subsection (1) “publication to the public” includes publication to a section of
the public.
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(3)
For the purposes of section 4A of the Limitation Act 1980 (time limit for actions
for defamation etc) any cause of action against the person for defamation in
respect of the subsequent publication is to be treated as having accrued on the
date of the first publication.
(4)
This section does not apply in relation to the subsequent publication if the
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manner of that publication is materially different from the manner of the first
publication.
(5)
In determining whether the manner of a subsequent publication is materially
different from the manner of the first publication, the matters to which the
court may have regard include (amongst other matters)—
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(a)
the level of prominence that a statement is given;
(b)
the extent of the subsequent publication.
(6)
Where this section applies—
(a)
it does not affect the court’s discretion under section 32A of the
Limitation Act 1980 (discretionary exclusion of time limit for actions for
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defamation etc), and
(b)
the reference in subsection (1)(a) of that section to the operation of
section 4A of that Act is a reference to the operation of section 4A
together with this section.
Jurisdiction
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9
Action against a person not domiciled in the UK or a Member State etc
(1)
This section applies to an action for defamation against a person who is not
domiciled—
(a)
in the United Kingdom;
(b)
in another Member State; or
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(c)
in a state which is for the time being a contracting party to the Lugano
Convention.
(2)
A court does not have jurisdiction to hear and determine an action to which
this section applies unless the court is satisfied that, of all the places in which
the statement complained of has been published, England and Wales is clearly
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the most appropriate place in which to bring an action in respect of the
statement.
(3)
The references in subsection (2) to the statement complained of include
references to any statement which conveys the same, or substantially the same,
imputation as the statement complained of.
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(4)
For the purposes of this section—
(a)
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;