DEFAMATION BILL

These notes relate to the Lords Amendments to the Defamation Bill, as brought from the House of Lords on 25 February 2013 [Bill 139]

Explanatory Notes

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INTRODUCTION

1. These explanatory notes relate to the Lords Amendments to the Defamation Bill as brought from the House of Lords on 25 February 2013. They have been prepared by the Ministry of Justice in order to assist the reader of the Bill and to help inform debate on the Lords Amendments. They do not form part of the Bill and have not been endorsed by Parliament.

2. These notes, like the Lords Amendments themselves, refer to HL Bill 41, the Bill as first printed for the Lords.

3. These notes need to be read in conjunction with the Lords Amendments and the text of the Bill. They are not, and are not meant to be, a comprehensive description of the effect of the Lords Amendments.

4. All the Lords Amendments were in the name of the Minister except for Amendments 1, 2, 15 and 16, which were opposed by the Government. (In the following Commentary, an asterisk appears in the heading to each of the paragraphs dealing with non-Government amendments).

COMMENTARY ON LORDS AMENDMENTS

Lords Amendments 1*, 15*, 16*

5. These amendments introduce requirements for an arbitration service, for use by claimants and publishers in defamation and related civil legal claims, which is to be made available by bodies which are recognised by the Defamation Recognition Commission ("the Commission"), itself a body newly created by this provision. The clause places requirements on the courts to consider certain matters when awarding costs and damages in relation to such legal claims.

Bill 139-EN

55/2

6. Subsections (1) and (2) of amendment 1 require the Lord Chief Justice to establish the Defamation Recognition Commission and the Schedule (Recognition Commission) provides more details about the Commission’s members, functions and powers. Subsection (3) of amendment 1 requires the Commission to certify bodies as Independent Regulatory Boards where they meet the criteria set out in the Schedule (Recognition Commission). Subsection (4) requires all Independent Regulatory Boards ("IRBs") to offer an arbitration service that complies with the requirements of the Schedule (specialist arbitration service). Subsections (5) to (8) specify matters which a court must take into account when awarding costs and damages in relation to a claim for defamation or a related civil legal matter that could have been brought under an IRB’s arbitration service.

7. Schedule (Recognition Commission) sets out how the Defamation Recognition Commission (also titled the Recognition Commission) will be constituted, providing details of how appointments are to be made to it, the criteria against which a body would be assessed to determine whether it is an Independent Regulatory Board (IRB) and how certification is to be reviewed and revoked.

8. Schedule (Specialist Arbitration Service) sets out the principles that an arbitration service must meet in order to comply with the terms of subsection (4) of amendment 1.

Lords Amendment 2*

9. This amendment adds a clause to the Bill with the effect that a body corporate, other non-natural legal person trading for profit or trade associations representing organisations trading for profit, would in order to bring a claim for defamation first have to obtain the permission of the court. The court would be required to strike out any such application for permission to bring a claim unless the claimant could show that publication of the statement complained of had caused or was likely to cause them substantial financial loss.

10. The amendment would also prevent any non-natural person (such as a private company) performing a public function from bringing a defamation claim in relation to a statement concerning that function. This would extend the principle articulated by the courts in the case of Derbyshire v Times Newspapers, which prevents local authorities and Government bodies from bringing a defamation claim, to all bodies performing a public function.

Lords Amendments 3 to 7

11. These amendments recast the defence of publication in the public interest under Clause 4 of the Bill. The defence is available if the defendant can satisfy the requirements in subsection (1) of the clause. Subsection (1)(a) requires the defendant to show that the statement complained of was, or formed part of, a statement on a matter of public interest. Amendment 3 amends subsection (1)(b) so that the defendant would also need to show that he reasonably believed that publishing the statement complained of was in the public interest. This replaces the previous version of subsection (1)(b), which required the defendant to show that he acted responsibly in publishing the statement. The intention is still to reflect the existing common law most recently explained in Flood v Times Newspapers [2012] UKSC 11.

Amendment 5 removes the list of factors to which the court was invited to have regard (amongst other matters) when considering whether the defendant had acted responsibly. Amendment 4 requires the court to have regard to all the circumstances of the case in determining whether the defendant has shown the matters set out in subsection (1). Amendment 7 inserts a new subsection requiring the court, in considering whether the defendant’s belief was reasonable, to make such allowance for editorial judgment as it considers appropriate.

Amendment 6 makes drafting changes to bring the provisions on the common law doctrine of reportage, which were previously in subsections (3) and (4) of the clause, into one subsection, without changing their effect. Reportage has been described by the courts as "a convenient word to describe the neutral reporting of attributed allegations rather than their adoption by the newspaper". In instances where this doctrine applies, the defendant does not need to have verified the information reported before publication because the way that the report is presented gives a balanced picture.

Lords Amendments 8 to 11

12. These amendments make changes on a number of points of detail relating to Clause 5 of the Bill, which creates a new defence for website operators where a defamation action is brought against them in respect of a statement posted on the website. Amendment 11 provides for the defence to be defeated if the claimant shows that the website operator has acted with malice in relation to the posting of the statement concerned. Amendment 10 provides for any regulations made under this clause to be subject to the affirmative resolution procedure in Parliament. Amendments 8 and 9 make technical amendments to ensure that there is adequate power to make regulations on certain issues. In particular, the amendment will mean that a provision can be included in the regulations, if appropriate, to the effect that where a notice sent by a complainant does not satisfy the requirements in subsection (6) of Clause 5 or regulations made under it, the website operator can be required to inform the complainant and point out what is necessary in order for a notice to be valid.

Lords Amendment 12

13. This amendment clarifies for the avoidance of doubt that the defence of qualified privilege for peer-reviewed statements in a scientific or academic journal in Clause 6 of the Bill extends to journals which are published in electronic form.

Lords Amendment 13

14. This amendment extends the qualified privilege which is available under Clause 7 of the Bill in respect of a 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 to material relating to the appointment, resignation, retirement or dismissal of the company’s auditors.

Lords Amendment 14

15. This amendment to Clause 13 of the Bill enables a claimant who has been successful in a claim against the publisher of defamatory material to obtain an order for a secondary publisher (such as a bookseller) to stop distributing, selling or exhibiting material containing the defamatory statement. Without such a provision, the effect of clause 10 of the Bill might be that an action could not be brought against the secondary publisher who refuses to remove material from circulation in these circumstances.

FINANCIAL EFFECTS OF THE LORDS AMENDMENTS

16. Lords Amendments 1*, 15* and 16* are likely to have financial implications. However, in all the circumstances it is not possible to assess with any degree of accuracy what these implications might be.