Defamation Bill

Page 1, line 3, after “publication” insert “, and the extent of its publication,”

Page 1, line 4, after “serious” insert “and substantial”

Page 1, line 4, at end insert—

“( ) The Secretary of State shall issue guidance to the court with a view to ensuring that any claim which fails to meet the test of “serious and substantial harm” set out in subsection (1) is struck out.”

Insert the following new Clause—

Substantial financial loss

A statement is not defamatory to a corporation or other non-natural legal persons that are trading for profit unless its publication has caused substantial financial loss.”

Insert the following new Clause—

Action brought before court

No action for defamation shall be brought before a court unless—

(a) mediation or neutral evaluation has taken place;

(b) voluntary arbitration has taken place; and

(c) when a case has reached the court, the court has taken all reasonable steps to minimise delays and costs that will ensue in proceedings.”

Insert the following new Clause—

“Strike-out procedure

(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 the 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 reasonably be regarded as having caused serious harm to the claimant’s reputation having regard to the extent of publication elsewhere.

(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.”

Insert the following new Clause—

“Early resolution procedure

(1) Strict enforcement of the Pre-Action Protocol governing defamation proceedings shall be adhered to, and the following alternatives to court proceedings should first be considered before a party is permitted to commence court proceedings.

(2) A presumption that mediation or neutral evaluation will be the default position shall apply.

(3) In the event that mediation or neutral evaluation is deemed unsuccessful, voluntary arbitration should be sought.

(4) If the claim has not been settled, court determination of key issues will be permitted.

(5) Key issues to be determined under subsection (3) may include—

(a) whether the publication of the statement has caused or is likely to cause serious harm;

(b) the meaning of the words complained of and whether that meaning is defamatory;

(c) whether the words complained of are a statement of fact or opinion;

(d) whether the publication is on a matter of public interest; and

(e) costs management.”

Insert the following new Clause—

“Corporations

(1) Before bringing a claim for defamation, a body corporate must obtain the permission of the court.

(2) The court must strike out an action for defamation under subsection (1) unless the body corporate can 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.

(3) This section applies in relation to bodies corporate, or other non-natural legal persons that are trading for profit, or trade associations representing “for profit” organisations; it does not intend to extend to charities, non-governmental organisations or other non-profit making bodies.”

Insert the following new Clause—

“Non-natural persons who perform a public or governmental function

Non-natural persons who perform a public or governmental function will not have an action in defamation, provided the statement complained of relates to that function.”

Page 1, line 14, at end insert—

“(3A) The defence under this section does not fail on the basis that one or more of the imputations is not shown to be substantially true, if that imputation would not materially injure the claimant’s reputation in the light of what the defendant has otherwise shown to be substantially true.”

Page 2, line 3, after “of” insert “adequately”

Page 2, line 14, leave out from beginning to “; and” and insert “made by another person (“the author”) but published in a form which is substantially the same by the defendant”

Page 2, line 16, at end insert—

“( ) Without prejudice to the generality of subsection (3), the second condition is met if in commenting on a letter or article that has appeared in a newspaper the defendant identifies the subject matter of the letter or article, and the date on which it appeared.”

Page 2, line 34, leave out paragraph (b) and insert—

“(b) the defendant reasonably believed that publishing the statement complained of was in the public interest.”

Line 3, at end insert “; and

(c) the defendant acted fairly as to the manner, balance and content of such a statement”

Page 2, line 36, leave out subsection (2)

Page 3, line 7, at end insert—

“(j) the resources available to the publisher.

( ) Under subsection (2)(j) the court will treat responsibility of a publisher flexibly as different resources may be available to different publishers.”

Page 3, line 8, leave out subsections (3) and (4)

Page 3, line 8, leave out subsections (3) and (4) and insert—

“( ) If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.”

Line 3, leave out “to which the claimant was a party”

Page 3, line 14, at end insert—

“( ) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.”

Line 4, leave out “editorial” and insert “the publisher’s”

Page 3, line 14, at end insert—

“( ) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must have regard to all the circumstances of the case.”

Page 3, line 22, after “operator” insert “or anyone associated with the operator”

Page 3, line 25, after “not” insert “reasonably”

Page 4, line 2, at end insert “and unlawful”

Page 4, line 4, at end insert—

“(e) sets out the complainant’s explanation as to—

(i) why it is defamatory of the complainant thus setting out any defamatory allegation about which complaint is made;

(ii) which facts in the statement concerned are inaccurate or untrue and therefore setting out the complainant’s explanation of the true position;

(iii) whether any opinion expressed is unsupportable and, if so, setting out why that is said to be the case; and

(iv) why the statement has caused or is likely to cause serious harm to the reputation of the complainant;

(f) may make provision for a procedure whereby a complainant can obtain from the court a declaration that his notice of complaint under subsection (3)(b) has met the requirements of subsection (6).”

Page 4, line 8, leave out from “section” to “House” in line 9 and insert “may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each”

Page 4, line 12, at end insert—

“( ) The defence under this section is defeated by malice or bad faith by or on behalf of the operator of a website.”

Insert the following new Clause—

“Unattributed website content

The Secretary of State shall publish guidance for the operators of websites designed to ensure that unattributed material is not published on any website.”

Page 4, line 14, after “journal” insert “or on a website edited and controlled by a chartered professional or learned body (a “recognised website”)”

Page 4, line 18, after “journal” insert “or on the recognised website”

Page 4, line 25, after “journal” insert “or on the recognised website”

Page 4, line 29, at end insert—

“(c) the assessment was written by one or more persons with expertise in the scientific or academic matter concerned and was approved by the editor of the journal.”

Page 4, line 29, at end insert—

“(c) the assessment was written by one or more persons with expertise in the scientific or academic matter concerned and was approved by the editor of the journal or recognised website.”

Page 4, line 39, after “(3)(a)” insert “and (4)(c)”

Page 4, line 39, after “journal” insert “or recognised website”

Page 4, line 40, after “journal” insert “or recognised website”

Page 5, line 14, at end insert—

“( ) After paragraph 8 insert—

“8A Communication between a Member of Parliament and any constituent.””

Page 6, line 6, at end insert “ or its auditors”

Page 6, line 13, leave out subsection (9)

Page 6, line 27, at end insert—

“( ) After paragraph 15 insert—

“15A (1) A peer reviewed article.

(2) Fair and accurate copies and reports of material in an archive where the limitation period for an action against the original publisher of the material has expired.””

Insert the following new Clause—

“Reports etc of certain Parliamentary matters protected by absolute privilege

(1) The following are absolutely privileged—

(a) a fair and accurate report of proceedings in Parliament;

(b) a fair and accurate report of anything published by or on the authority of Parliament; and

(c) a fair and accurate copy of, extract from or summary of anything published by or on the authority of Parliament.

(2) The court must stay any proceedings where the defendant shows that—

(a) the proceedings relate to the publication of anything that falls within paragraph (a), (b) or (c) of subsection (1); or

(b) the proceedings seek to prevent or postpone the making of any such publication.

(3) This section also has effect in relation to the Welsh Assembly and the Northern Ireland Assembly (and any reference to Parliament is to be read as a reference to the Assembly in question).

(4) The Parliamentary Papers Act 1840 is repealed.”

Insert the following new Clause—

“Evidence concerning proceedings in Parliament

(1) In this section “the relevant protection”, in relation to the proceedings of either House of Parliament, means the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament.

(2) The Speaker of either House of Parliament may, in accordance with Standing Orders of that House, by notice in writing waive the application of the relevant protection to such proceedings in an action for defamation as are specified in that notice.

(3) Where the relevant protection is waived in relation to any proceedings in an action for defamation—

(a) that protection is not to apply to prevent evidence being given, questions being asked or statements, submissions, comments or findings being made in those proceedings; and

(b) none of those things is to be regarded as infringing the privilege of either House of Parliament.

(4) Nothing in this section affects any enactment or rule of law so far as it protects a person from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament.

(5) Without prejudice to the generality of subsection (4), that subsection applies to—

(a) the giving of evidence before either House or a committee;

(b) the presentation or submission of a document to either House or a committee;

(c) the preparation of a document for the purposes of or incidental to the transacting of any such business;

(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of either House or a committee; and

(e) any communication with the Parliamentary Commissioner for Standards or any person having functions in connection with the registration of members’ interests.

In this subsection “a committee” means a committee of either House or a joint committee of both Houses of Parliament.

(6) Section 13 of the Defamation Act 1996 is repealed.”

Page 7, line 4, after “public” insert “or to a section of the public”

Page 7, line 5, after “public” insert “or to a section of the public”

Page 7, leave out lines 7 and 8

Page 7, line 29, at end insert—

“( ) A person domiciled in England or Wales may bring an action for defamation in respect of publication by a person to whom subsection (1) below applies provided that they can demonstrate that such publication has caused them serious and substantial harm.”

Page 7, line 38, leave out “clearly”

Insert the following new Clause—

“Action against an individual domiciled in the UK

(1) This section applies to an action for defamation against a person who is domiciled in the United Kingdom.

(2) A court does not have jurisdiction to hear and determine an action relating to the activities of a religious organisation domiciling outside the United Kingdom without evidence of real potential damage.”

Page 8, line 38, at end insert—

“( ) A court may only order a trial without jury in a case involving a senior figure in public life and when that person’s credibility is at stake.”

Insert the following new Clause—

“Civil Procedure Rule Committee Guidance

The Secretary of State shall publish guidance for the Civil Procedure Rule Committees proposing procedural reforms in the case of defamation proceedings.”

Insert the following new Clause—

“Reporting to Parliament

The Secretary of State shall report to Parliament annually on the codification of this Act; and in particular on its impact on accessibility and clarity of the law.”