Defamation Bill (HC Bill 5)

Requirement of serious harm

1 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.

5Defences

2 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
10of conveys two or more distinct imputations.

(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) 15The common law defence of justification is abolished and, accordingly, section
5 of the Defamation Act 1952 (justification) is repealed.

3 Honest opinion

(1) It is a defence to an action for defamation for the defendant to show that the
following conditions are met.

(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) 5The third condition is that an honest person could have held the opinion on the
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
10before the statement complained of.

(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
15such a case the defence is defeated if the claimant shows that the defendant
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) 20a defence under section 4 (responsible publication on matter of public
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
25proceedings protected by absolute privilege);

(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.

4 30Responsible publication on matter of public interest

(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
35complained of.

(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) 40the seriousness of the imputation conveyed by the statement;

(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
45what the defendant knew about the reliability of that information;

(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
5imputation conveyed by the statement;

(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
10account of a dispute to which the claimant was a party.

(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) 15For the avoidance of doubt, the defence under this section may be relied upon
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.

5 Operators of websites

(1) 20This section applies where an action for defamation is brought against the
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) 25it was not possible for the claimant to identify the person who posted
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
30with any provision contained in regulations.

(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) 35specifies where on the website the statement was posted, and

(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
40include action relating to the identity or contact details of the person
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) 45make any other provision for the purposes of this section.

(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
5annulment in pursuance of a resolution of either House of Parliament.

(8) In this section “regulations” means regulations made by the Secretary of State.

6 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) 10The first condition is that the statement relates to a scientific or academic
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) 15the editor of the journal, and

(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
20assessment of the statement’s scientific or academic merit is also privileged if—

(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
25this section, the publication of a fair and accurate copy of, extract from or
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) 30as protecting the publication of matter the publication of which is
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
35editors who were responsible for deciding to publish the statement concerned.

7 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) 40any court in the United Kingdom;

(b) any court established under the law of a country or territory
outside the United Kingdom;

(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) 5In subsection (3) of section 15 of that Act (qualified privilege) for “public
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
10other matter issued for the information of the public by or on behalf
of—

(a) a legislature or government anywhere in the world;

(b) an authority anywhere in the world performing
governmental functions;

(c) 15an international organisation or international conference.

(2) In this paragraph “governmental functions” includes police
functions.

10 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
20officer of such a court.”

(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) 25In paragraph 12 (report of proceedings at public meetings)—

(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) 30in sub-paragraph (1), for “UK public company” substitute “listed
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) 35by or with the authority of the board of directors of
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) 40A fair and accurate copy of, extract from or summary of any
document circulated to members of a listed company which
relates to the appointment, resignation, retirement or
dismissal of directors of the company.

(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)
5in the words before paragraph (a), for “in the United Kingdom or another
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
10held anywhere in the world, or

(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) 15A fair and accurate report or summary of, copy of or extract from,
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
20instrument which shall be subject to annulment in pursuance of a
resolution of either House of Parliament.”

(11) For paragraphs 16 and 17 (general provision) substitute—

“16 In this Schedule—

• “court” includes—

  (a)

  25any tribunal or body established under the law of any
  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
  30agreement;

  (c)

  any international tribunal deciding matters in dispute
  between States;

• “international conference” means a conference attended by
  representatives of two or more governments;

• 35“international organisation” means an organisation of which
  two or more governments are members, and includes any
  committee or other subordinate body of such an
  organisation;

• “legislature” includes a local legislature; and

• 40“member State” includes any European dependent territory of
  a member State.”

Single publication rule

8 Single publication rule

(1) This section applies if a person—

(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
5the public.

(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) 10This section does not apply in relation to the subsequent publication if the
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
15court may have regard include (amongst other matters)—

(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
20Limitation Act 1980 (discretionary exclusion of time limit for actions for
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.

25Jurisdiction

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) 30in another Member State; or

(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
35the statement complained of has been published, England and Wales is clearly
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,
40imputation as the statement complained of.

(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;

(b) a person is domiciled in a state which is a contracting party to the
Lugano Convention if the person is domiciled in the state for the
purposes of that Convention.

(5) In this section—

• 5“the Brussels Regulation” means Council Regulation (EC) No 44/2001 of
  22nd December 2000 on jurisdiction and the recognition and
  enforcement of judgments in civil and commercial matters, as amended
  from time to time and as applied by the Agreement made on 19th
  October 2005 between the European Community and the Kingdom of
  10Denmark on jurisdiction and the recognition and enforcement of
  judgments in civil and commercial matters (OJ No L299 16.11.2005 at p
  62);

• “the Lugano Convention” means the Convention on jurisdiction and the
  recognition and enforcement of judgments in civil and commercial
  15matters, 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.

10 Action against a person who was not the author, editor etc

(1) 20A court does not have jurisdiction to hear and determine an action for
defamation brought against a person who was not the author, editor or
publisher of the statement complained of unless the court is satisfied that it is
not reasonably practicable for an action to be brought against the author, editor
or publisher.

(2) 25In this section “author”, “editor” and “publisher” have the same meaning as in
section 1 of the Defamation Act 1996.

Trial by jury

11 Trial to be without a jury unless the court orders otherwise

(1) In section 69(1) of the Senior Courts Act 1981 (certain actions in the Queen’s
30Bench Division to be tried with a jury unless the trial requires prolonged
examination of documents etc) in paragraph (b) omit “libel, slander,”.

(2) In section 66(3) of the County Courts Act 1984 (certain actions in the county
court to be tried with a jury unless the trial requires prolonged examination of
documents etc) in paragraph (b) omit “libel, slander,”.

35Summary of court judgment

12 Power of court to order a summary of its judgment to be published

(1) Where a court gives judgment for the claimant in an action for defamation the
court may order the defendant to publish a summary of the judgment.

(2) The wording of any summary and the time, manner, form and place of its
40publication are to be for the parties to agree.

(3) If the parties cannot agree on the wording, the wording is to be settled by the
court.

(4) If the parties cannot agree on the time, manner, form or place of publication,
the court may give such directions as to those matters as it considers reasonable
and practicable in the circumstances.

(5) This section does not apply where the court gives judgment for the claimant
5under section 8(3) of the Defamation Act 1996 (summary disposal of claims).

Slander

13 Special damage

(1) The Slander of Women Act 1891 is repealed.

(2) The publication of a statement that conveys the imputation that a person has a
10contagious or infectious disease does not give rise to a cause of action for
slander unless the publication causes the person special damage.

General provisions

14 Meaning of “publish” and “statement”

In this Act—

• 15“publish” and “publication”, in relation to a statement, have the meaning
  they have for the purposes of the law of defamation generally;

• “statement” means words, pictures, visual images, gestures or any other
  method of signifying meaning.

15 Consequential amendments and savings etc

(1) 20Section 8 of the Rehabilitation of Offenders Act 1974 (defamation actions) is
amended in accordance with subsections (2) and (3).

(2) In subsection (3) for “of justification or fair comment or” substitute “under
section 2 or 3 of the Defamation Act 2012 which is available to him or any
defence”.

(3) 25In subsection (5) for “the defence of justification” substitute “a defence under
section 2 of the Defamation Act 2012”.

(4) Nothing in section 1 or 13 affects any cause of action accrued before the
commencement of the section in question.

(5) Nothing in sections 2 to 7 or 10 has effect in relation to an action for defamation
30if the cause of action accrued before the commencement of the section in
question.

(6) In determining whether section 8 applies, no account is to be taken of any
publication made before the commencement of the section.

(7) Nothing in section 9 or 11 has effect in relation to an action for defamation
35begun before the commencement of the section in question.

(8) In determining for the purposes of subsection (7)(a) of section 3 whether a
person would have a defence under section 4 to any action for defamation, the
operation of subsection (5) of this section is to be ignored.