House of Commons Public Bill Committee Proceedings

Session 2012 - 13
Internet Publications
Other Bills before Parliament

77

SUPPLEMENT TO THE VOTES AND PROCEEDINGS

Wednesday 12 September 2012

Report Stage Proceedings

Defamation Bill, As Amended

NEW CLAUSES

Order for removal of defamatory statement from website

Secretary Chris Grayling

Added  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

Negatived on division  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.’.

Corporations

Robert Flello

Not selected  NC3

To move the following Clause:—

Report Stage Proceedings: 12 September 2012
78

Defamation Bill, continued

‘(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

Withdrawn  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

(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.

Report Stage Proceedings: 12 September 2012
79

Defamation Bill, continued

(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

Not selected  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

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.

Report Stage Proceedings: 12 September 2012
80

Defamation Bill, continued

(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

Not called  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

Not called  1

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

following initial publication’.

Paul Farrelly

Not called  10

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

John McDonnell

Austin Mitchell

Not called  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

Not called  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

Not called  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.’.

Paul Farrelly

Not called  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’.

Report Stage Proceedings: 12 September 2012
81

Defamation Bill, continued

John McDonnell

Austin Mitchell

Not called  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

Negatived on division  7

Page  3,  line  22,  leave out Clause 5.

Secretary Chris Grayling

Agreed to  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

Agreed to  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

Negatived on division  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.’.

Bill read the third time, and passed.



© Parliamentary copyright	Revised 13 September 2012