House of Commons Amendments

Session 2012 - 13
Internet Publications
Other Bills before Parliament

49

House of Commons

Tuesday 26 June 2012

Public Bill Committee

New Amendments handed in are marked thus

Amendments which will comply with the required notice period at their next appearance

Defamation Bill

Robert Flello

15

Clause  7,  page  5,  line  22,  after ‘proceedings’, insert ‘, or of the contents of a press

release circulated or published’.

Robert Flello

31

Clause  8,  page  6,  line  44,  leave out from ‘applies’ to end of line 3 on page 7 and

insert ‘, if—

(a)
a statement is published to the public (“the first publication”), and

(b)
there is subsequently published (whether or not to the public) that

statement or a statement which is substantially the same.’.

Robert Flello

11

Clause  8,  page  7,  line  17,  at end insert—

‘(c)
the comparative quality and credibility of the source of the subsequent

publication, compared with the first publication.’.

Robert Flello

32

Clause  8,  page  7,  line  17,  at end insert—

‘(5A)
Publication shall not be deemed to be materially different merely by virtue of—

(a)
the publication, as part of a regular series of publications, without charge

on the internet of academic or scientific journals which required payment

to access when originally published; or

Public Bill Committee: 26 June 2012
50

Defamation Bill, continued

(b)
the creation of an archive accessible on the internet.’.

Paul Farrelly

52

Clause  9,  page  7,  line  27,  leave out ‘against a person who is not domiciled’ and

insert ‘by a person or against a person neither of whom are domiciled.’.

Paul Farrelly

53

Clause  9,  page  7,  line  32,  at end insert—

‘(1A)
This section also applies in an action for defamation where the court is satisfied

that the words or matters complained of have been principally published outside

the United Kingdom.’.

Paul Farrelly

54

Clause  9,  page  7,  line  37,  at end insert ‘taking all relevant factors into consideration

and having regard also to the extent of publication elsewhere.’.

Paul Farrelly

51

Clause  10 ,  page  8,  line  20,  after ‘for’, insert ‘damages for’.

Paul Farrelly

49

Clause  10,  page  8,  line  21,  after ‘person’, insert ‘(other than an operator of a

website (as defined in Clause 5).’.

Robert Flello

16

Clause  10,  page  8,  line  22,  leave out from ‘court’ to end of line 24 and insert—

‘(a)
is satisfied that it is not reasonably practicable for an action to be brought

against the author, editor or publisher; and

(b)
has made a determination that the statement complained of is

defamatory.’.

Paul Farrelly

50

Clause  10,  page  8,  line  26,  at end add—

‘(3)
Nothing in this section shall prevent a court from granting any injunction or order

requiring a person to cease publishing a defamatory statement.’.

Public Bill Committee: 26 June 2012
51

Defamation Bill, continued

Mr Jonathan Djanogly

1

Clause  16,  page  10,  line  3,  leave out subsections (2) and (3).

Mr Jonathan Djanogly

2

Clause  16,  page  10,  line  7,  at beginning insert ‘Subject to subsection (5),’.

Mr Jonathan Djanogly

3

Clause  16,  page  10,  line  7,  at end insert—

‘(5)
The following provisions also extend to Scotland—

(a)
section 6;

(b)
section 7(9);

(c)
section 14;

(d)
section 15(5) (in so far as it relates to sections 6 and 7(9));

(e)
this section.

(6)
Subject to subsections (7) and (8), the provisions of this Act come into force on

such day as the Secretary of State may by order made by statutory instrument

appoint.

(7)
Sections 6 and 7(9) come into force in so far as they extend to Scotland on such

day as the Scottish Ministers may by order appoint.

(8)
Section 14, subsections (4) to (8) of section 15 and this section come into force

on the day on which this Act is passed.’.

New Clauses

Court orders restricting ability to make statements

John Hemming

NC1

To move the following Clause:—

‘(1)
In issuing any order restricting any individual’s freedom to make statements in

respect of any court action relating to defamation the court shall not include any

provision which prevents the individual concerned or any other individual from

passing information relevant to any regulatory requirements to any regulator

including the police, and the following statement shall be included in each such

court order—

  “Nothing in this order shall prevent any individual from making a

complaint to any regulatory body including the police or passing any

information to any regulatory body including the police.”.’.

Public Bill Committee: 26 June 2012
52

Defamation Bill, continued

Operators of websites: order for removal of defamatory statement

Robert Flello

nc2

To move the following Clause:—

‘(1)
This section applies where an action for defamation may be brought in respect of

a statement posted on a website, whether or not such an action is actually brought

and regardless of whether the action lies against the operator of the website, the

author of the statement or both.

(2)
A claimant may apply to the court for an order that the operator remove the

relevant statement from the website.

(3)
Where an application for an order under this section is made—

(a)
the operator shall inform the author, if identifiable, of the relevant

statement about the application;

(b)
both the operator and the author, if known, may make written

submissions to the court in relation to the application, such written

submissions to be made available to the claimant, the operator and the

author, if known; and

(c)
the judge shall take into account any such written submissions before

coming to a decision in relation to whether or not to grant the order.

(4)
Any order under this section must be implemented by the operator no later than

seven days following notice of the order; and failure to comply with this time

limit will render the operator liable in an action for defamation as if the operator

were the author of the relevant statement.’.

Action for defamation brought by body corporate

Robert Flello

nc4

To move the following Clause:—

‘(1)
Before bringing a claim for defamation, the body corporate shall obtain the

permission of the court.

(2)
In determining whether to grant permission, the matters to which the court may

have regard include, but are not limited to—

(a)
whether the body corporate can demonstrate an arguable case;

(b)
whether it could pursue alternative means of redress;

(c)
its size and area of operation;

(d)
the proportionality of allowing the corporation to bring a claim by

reference to the likely costs of the proceedings, and the level of harm

suffered, or likely to be suffered, by the corporation.

(3)
Subject to subsection (5), a body corporate which seeks to pursue an action for

defamation must show that the publication of the words or matters complained of

has caused, or is likely to cause, substantial financial loss to the body corporate.

(4)
In determining for the purposes of this section whether substantial financial loss

has been incurred, a court shall have regard to the following—

(a)
whether there has been, or is likely to be, a substantial loss of custom

directly caused by an alleged defamatory statement;

Public Bill Committee: 26 June 2012
53

Defamation Bill, continued

(b)
whether the body corporate can prove likelihood of a general turndown

in business as a consequence of the alleged defamatory statement, even

if it cannot prove the loss of specific customers or contracts; this shall

suffice as a form of actual loss, and satisfy the test of substantial financial

loss;

(c)
a fall in share price shall not suffice as the sole grounds to justify the

bringing of a claim;

(d)
injury to goodwill or any expense incurred in mitigation of damage to

reputation shall not suffice as the sole ground to justify the bringing of a

claim for defamation.

(5)
The test specified in subsection (3) applies solely to bodies corporate, or other

non-natural legal persons that are trading for profit, or trade associations

representing “for-profit” organisations; it does not extend to charities, non-

governmental organisations or other non-profit making bodies.’.

Civil procedure rules

Robert Flello

nc5

To move the following Clause:—

‘Strict enforcement of the Pre-Action Protocol governing defamation

proceedings shall be adhered to, and the following alternatives to court

proceedings should first be considered before a party is permitted to commence

court proceedings—

(1)
A presumption that mediation or neutral evaluation will be the default position

shall apply.

(2)
In the event that mediation or neutral evaluation is deemed unsuccessful,

voluntary arbitration should be sought.

(3)
If the claim has not been settled, court determination of key issues will be

permitted.’.

Publication on matters of public interest

Robert Flello

NC6

To move the following Clause:—

‘(1)
The publication of a statement which is, or forms part of, a statement on a matter

of public interest is privileged unless the publication is shown to be made with

malice.

(2)
In defamation proceedings in respect of a publication under subsection (1) there

is no defence under this section if the claimant shows that the defendant—

(a)
was requested by him to publish in a suitable manner a reasonable letter

or statement by way of explanation or contradiction (the “response”), and

(b)
refused or neglected to do so.

Public Bill Committee: 26 June 2012
54

Defamation Bill, continued

(3)
For the purpose of subsection (2), “in a suitable manner” means in the same

manner as the publication complained of or in a manner that is adequate and

reasonable in the circumstances, having particular regard to—

(a)
the need for the response to have equal prominence as the publication

complained of,

(b)
the promptness of the publication of the response, and

(c)
where appropriate, the extent and promptness of the removal or

clarification of, or correction to, the publication complained of.

(4)
Nothing in this section shall be construed—

(a)
as protecting the publication of matter the publication of which is

prohibited by law, or

(b)
as limiting (or bridging) any privilege subsisting apart from this section.’.

Corporations

Robert Flello

NC7

To move the following Clause:—

‘(1)
A non-natural person will only have an action in defamation if they can show—

(a)
that the publication was published with malice; or

(b)
that they have suffered actual or likely financial harm.’.

Strike-out procedure

Robert Flello

NC8

To move the following Clause:—

‘(1)
The court must strike-out an action for defamation unless the claimant shows

that—

(a)
its publication has caused or is likely to cause serious harm to the

reputation of the claimant; and

(b)
there has been a real and substantial tort in the jurisdiction.

(2)
For the purposes of subsection 1(b), no real and substantial tort is to be regarded

as having occurred in relation to the claimant unless the publication in the

jurisdiction can reasonably be regarded as having caused serious harm to the

claimant’s reputation having regard to the extent of publication elsewhere.

(3)
Subsection (1) does not apply if, in exceptional circumstances, the court is

satisfied that it would be in the interests of justice not to strike out the action.

(4)
A order under subsection (1) may be made by the court of its own motion or on

an application by any party to the action.

Public Bill Committee: 26 June 2012
55

Defamation Bill, continued

(5)
Subsection (1) does not limit any power to strike-out proceedings which is

exercisable apart from this section.’.

Removal of allegedly defamatory material

Helen Goodman

NC9

To move the following Clause:—

‘The removal of allegedly defamatory material from a website and the publication

of apologies and corrections shall not prevent a claimant from bringing an action

for defamation.’.

Disapplication of Legal Aid, Sentencing and Punishment of Offenders Act 2012

Mr Andy Slaughter

NC10

To move the following Clause:—

‘Sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders

Act 2012 shall not apply in relation to civil actions for defamation, malicious

falsehood, breach of confidence, privacy or publication proceedings.’.

Limitation of success fees

Mr Andy Slaughter

NC11

To move the following Clause:—

‘(1)
Section 44 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012

shall not apply in relation to civil actions for defamation, malicious falsehood,

breach of confidence, privacy or publication proceedings.

(2)
Section 58(4)(c) of the Courts and Legal Services Act 1990 is amended to add at

end the words “except in defamation, malicious falsehood, breach of confidence,

privacy or publication proceedings where that percentage must not exceed 50 per

cent.”.’.



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