Session 2012 - 13
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Other Bills before Parliament


 
 

245

 

House of Commons

 
 

Wednesday 12 September 2012

 

Consideration of Bill

 

Defamation Bill, As Amended


 

NEW CLAUSES

 

Order for removal of defamatory statement from website

 

Secretary Chris Grayling

 

NC1

 

To move the following Clause:—

 

‘(1)    

Where a court gives judgment for the claimant in an action for defamation the

 

court may order the operator of a website on which the defamatory statement is

 

posted to remove the statement.

 

(2)    

Subsection (1) does not affect the power of the court apart from that subsection.’.

 


 

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

 

Robert Flello

 

NC2

 

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.’.

 



 
 

Consideration of Bill: 12 September 2012                

246

 

Defamation Bill, continued

 
 

Corporations

 

Robert Flello

 

NC3

 

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 be 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;

 

(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 experience 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 intend to extend to charities, non-

 

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

 


 

Publication on matters of public interest

 

Simon Hughes

 

NC4

 

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)    

Subsection (1) shall not apply if the claimant shows that the defendant—

 

(a)    

was requested by him to publish, in a suitable manner, either or both


 
 

Consideration of Bill: 12 September 2012                

247

 

Defamation Bill, continued

 
 

(i)    

a reasonable letter or statement by way of explanation or

 

contradiction (a “response”), and

 

(ii)    

where appropriate, a correction or clarification; and

 

(b)    

refused or otherwise failed to do so.

 

(3)    

 

(a)    

For the purpose of subsection 2(a), “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.

 

(b)    

In determining what is “adequate and reasonable” for the purposes of

 

subsection (3)(a) particular regard shall be had to—

 

(i)    

the need for a response to have equal prominence as the

 

statement complained of;

 

(ii)    

the promptness of the publication of a response;

 

(iii)    

the extent, prominence and promptness of the publication of a

 

correction or clarification.

 

(4)    

In determining whether, for the purposes of subsection (2)(a)(ii), a correction or

 

clarification is “appropriate” regard shall be had to—

 

(a)    

whether a correction or clarification is required to extinguish any

 

defamatory imputation of the statement complained of, and

 

(b)    

whether the author, editor or publisher knew, or ought to have known,

 

that the defamatory imputation (or, in the case of a statement of an

 

opinion containing a defamatory imputation, the fact on which the

 

opinion was based) was false by the time the complaint was received or

 

upon receipt of the complaint.

 

(5)    

For the purposes of subsection (1) malice shall be taken to mean—

 

(a)    

the absence of an honest belief in the truth of the statement complained

 

of, or an opinion expressed therein,

 

(b)    

reckless disregard to the truth or falsity of the statement complained of, or

 

(c)    

the existence of a dominant improper motive for the publication of the

 

statement complained of.

 

(6)    

Nothing in this section shall be construed as—

 

(a)    

protecting the publication of a matter the publication of which is

 

prohibited by law, or

 

(b)    

limiting any privilege subsisting apart from this section.’.

 


 

Power to strike out

 

Simon Hughes

 

NC5

 

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 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 reasonable be regarded as having caused serious harm to the


 
 

Consideration of Bill: 12 September 2012                

248

 

Defamation Bill, continued

 
 

claimant’s reputation having regard to the extent of publication in another

 

jurisdiction which is not—

 

(a)    

the UK or another member state;

 

(b)    

a state which is for the time being a contracting party to the Lugano

 

Convention.

 

(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)    

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

 

an application by any party to the action.

 

(5)    

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

 

exercisable apart from this section.’.

 


 

Paul Farrelly

 

9

 

Page  2,  line  40  [Clause  4],  leave out from ‘statement’ to end of line 41 and insert

 

‘the court must have regard to all the circumstances of the case and those circumstances

 

may include (among other things)—’.

 


 

John McDonnell

 

Austin Mitchell

 

1

 

Page  3,  line  5  [Clause  4],  after ‘it’, insert ‘or within or a reasonable amount of time

 

following initial publication’.

 

Paul Farrelly

 

10

 

Page  3,  line  7  [Clause  4],  leave out paragraph (g).

 

John McDonnell

 

Austin Mitchell

 

2

 

Page  3,  line  8  [Clause  4],  at end insert ‘within a reasonable amount of time,

 

allowing for the public and commercial interest in publication.’.

 

Paul Farrelly

 

11

 

Page  3,  line  9  [Clause  4],  leave out from ‘the’ to end of line and insert ‘urgency of

 

the matter; or’.

 

John McDonnell

 

Austin Mitchell

 

3

 

Page  3,  line  10  [Clause  4],  at end insert—

 

‘(j)    

whether the defendant had made reasonable efforts to abide by the

 

National Union of Journalists’ Code of Conduct.’.


 
 

Consideration of Bill: 12 September 2012                

249

 

Defamation Bill, continued

 
 

Paul Farrelly

 

12

 

Page  3,  line  10  [Clause  4],  at end insert—

 

‘( )    

the extent of the defendant’s compliance with any relevant code of

 

conduct or other relevant guidelines’.

 

John McDonnell

 

Austin Mitchell

 

4

 

Page  3,  line  21  [Clause  4],  at end insert—

 

    ‘(7)  

In determining public interest, the court shall have regard to whether the

 

claimant is a person in public life, which should be taken to include (amongst

 

others) politicians, public officials, celebrities and others whose influence,

 

earnings or social status is dependent on a public image.’.

 

Robert Flello

 

7

 

Page  3,  line  22,  leave out Clause 5.

 

Secretary Chris Grayling

 

5

 

Page  3,  line  33  [Clause  5],  at end insert—

 

‘(3A)    

For the purposes of subsection (3)(a), it is possible for a claimant to “identify” a

 

person only if the claimant has sufficient information to bring proceedings against

 

the person.’

 


 

Secretary Chris Grayling

 

6

 

Page  4,  line  9  [Clause  5],  at end insert—

 

‘(10)    

The defence under this section is not defeated by reason only of the fact that the

 

operator of the website moderates the statements posted on it by others.’

 


 

Robert Flello

 

8

 

Page  8,  line  26  [Clause  10],  leave out from ‘court’ to end of line 28 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)    

there is a prima facia case that the statement complained of is

 

defamatory; and

 

(c)    

is satisfied that such person did not know that the statement was

 

defamatory until a claim to that effect was made and did not reasonably

 

believe that there was a good defence to any action brought upon it.’.

 


 
 

Consideration of Bill: 12 September 2012                

250

 

Defamation Bill, continued

 
 

Order of the House [12 JUNE 2012]

 

That the following provisions shall apply to the Defamation Bill—

 

Committal

 

1.    

The Bill shall be committed to a Public Bill Committee.

 

Proceedings in Public Bill Committee

 

2.    

Proceedings in the Public Bill Committee shall (so far as not previously

 

concluded) be brought to a conclusion on Tuesday 26 June 2012.

 

3.    

The Public Bill Committee shall have leave to sit twice on the first day on

 

which it meets.

 

Consideration and Third Reading

 

4.    

Proceedings on Consideration shall (so far as not previously concluded) be

 

brought to a conclusion one hour before the moment of interruption on the

 

day on which those proceedings are commenced.

 

5.    

Proceedings on Third Reading shall (so far as not previously concluded) be

 

brought to a conclusion at the moment of interruption on that day.

 

6.    

Standing Order No. 83B (Programming committees) shall not apply to

 

proceedings on Consideration and Third Reading.

 

Other proceedings

 

7.    

Any other proceedings on the Bill (including any proceedings on

 

consideration of Lords Amendments or on any further messages from the

 

Lords) may be programmed.

 


 
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Revised 12 September 2012