|
|
| |
| |
|
| Wednesday 12 September 2012 |
|
| |
| Defamation Bill, As Amended
|
|
| |
| | Order for removal of defamatory statement from website |
|
| |
| | |
| 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 |
|
| |
| | 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.’. |
|
| |
| | |
| |
| | |
| To move the following Clause:— |
|
|
|
| |
| |
|
| | ‘(1) | Before bringing a claim for defamation, the body corporate shall obtain the |
|
| | |
| | (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 |
|
| | |
| | (c) | a fall in share price shall not suffice as the sole grounds to justify the |
|
| | |
| | (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 |
|
| | |
| | (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 |
|
| |
| | |
| 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 |
|
| | |
| | (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. |
|
|
|
| |
| |
|
| | |
| | (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 |
|
| | |
| | (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 |
|
| | |
| | (6) | Nothing in this section shall be construed as— |
|
| | (a) | protecting the publication of a matter the publication of which is |
|
| | |
| | (b) | limiting any privilege subsisting apart from this section.’. |
|
| |
| | |
| |
| | |
| To move the following Clause:— |
|
| | ‘(1) | The court must strike out an action for defamation unless the claimant shows |
|
| | |
| | (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 |
|
| | |
|
|
| |
| |
|
| | (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.’. |
|
| |
| |
| | |
| 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)—’. |
|
| |
| |
| |
| | |
| Page 3, line 5 [Clause 4], after ‘it’, insert ‘or within or a reasonable amount of time |
|
| following initial publication’. |
|
| |
| | |
| Page 3, line 7 [Clause 4], leave out paragraph (g). |
|
| |
| |
| | |
| Page 3, line 8 [Clause 4], at end insert ‘within a reasonable amount of time, |
|
| allowing for the public and commercial interest in publication.’. |
|
| |
| | |
| Page 3, line 9 [Clause 4], leave out from ‘the’ to end of line and insert ‘urgency of |
|
| |
| |
| |
| | |
| 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.’. |
|
| |
| | |
| 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’. |
|
|
|
| |
| |
|
| |
| |
| | |
| 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.’. |
|
| |
| | |
| Page 3, line 22, leave out Clause 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 |
|
| | |
| |
| |
| | |
| 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.’ |
|
| |
| |
| | |
| 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 |
|
| | |
| | (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. |
|
| |
|