Defamation Bill

Insert the following new Clause—

“Arbitration Service for defamation and related civil claims against members of Independent Regulatory Board

(1) The Lord Chief Justice shall establish a Defamation Recognition Commission.

(2) Schedule (Recognition Commission) makes provision relating to the Defamation Recognition Commission.

(3) The Defamation Recognition Commission shall certify bodies as Independent Regulatory Boards in accordance with the criteria in Schedule (Recognition Commission).

(4) An Independent Regulatory Board shall provide a recognised arbitration service as set out in Schedule (Specialist Arbitration Service).

(5) A court shall take into account when awarding costs and damages whether either party, claimant or defendant in a dispute has chosen not to use the recognised arbitration service of an Independent Regulatory Board.

(6) A court shall award costs under subsection (5) on an indemnity basis unless the interests of justice require otherwise.

(7) A court may order a successful party to pay all the costs of proceedings if such party has unreasonably refused to use an available recognised arbitration service.

(8) A court awarding in its judgment exemplary damages where a defendant is guilty of a flagrant breach of a defendants rights, can also take into account whether—

(a) a claimant refused to use a recognised arbitration service;

(b) a defendant refused to use or join a recognised arbitration service;

(c) the court shall also take into account whether a defendant first sought advice from a recognised Independent Regulatory Board before publication.”

Insert the following new Clause—

“Non-natural persons

(1) This section applies to an action for defamation brought by—

(a) a body corporate;

(b) other non-natural legal persons trading for profit; or

(c) trade associations representing organisations trading for profit.

(2) The permission of the court must be obtained in order to bring an action to which this section applies.

(3) The court must strike out an application under subsection (2) 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 claimant.

(4) Non-natural persons performing a public function do not have an action in defamation in relation to a statement concerning that function.”

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.”

Page 2, line 7, leave out “basis” and insert “subject matter”

Page 2, line 7, at end insert—

“( ) Without prejudice to the generality of subsection (3), the second condition is met if the defendant indicates the subject matter of a letter or article appearing in a newspaper or other publication, and the date when it appeared.”

Page 2, line 37, leave out “reasonably” and insert “could reasonably have”

Page 2, line 37, leave out “believed” and insert “decided”

Page 2, line 38, at end insert—

“(1A) Subject to subsections (2) and (3), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.”

Page 2, line 39, leave out subsection (2)

Page 3, line 9, leave out subsections (1) to (5) and insert—

“(1) It is a defence for the operator to show that—

(a) it was not the operator who posted the statement,

(b) the operator took reasonable care in relation to its posting,

(c) the operator did not know and had no reason to believe that what it did caused, encouraged or contributed to the posting of the statement, and

(d) the operator responded to a complaint about the statement with expedition and took such action in relation to the statement as was reasonable in the circumstances.

(2) In considering the reasonableness of a defence under this section, a court shall take into account any steps taken by an operator to establish or adopt, and then to enforce or implement, any anti-defamation code of practice, any complaints procedure and any system for ascertaining and making available to a claimant the identity of any person posting any statement sufficient for the claimant to bring proceedings against the person.”

Page 3, line 19, at end insert—

“(3A) Where a complaint is received by an operator under subsection (3), the operator must publish on their website a notice of complaint alongside the relevant statement and, if the operator fails to do so within seven days of notice of the complaint, the operator will only be entitled to rely on the standard defences available to a primary publisher, if sued for defamation.”

Page 3, line 32, at beginning insert “Subject to any provision made by virtue of subsection (6A),”

Page 3, line 35, after “complainant” insert “and wrongful”

Page 3, line 35, at end insert “including—

(i) why any facts in the statement complained of are untrue; and

(ii) why any opinions in the statement complained of are unsupportable; and

(iii) why the statement has caused or is likely to cause serious harm to the reputation of the claimant”

Page 3, line 37, at end insert—

“(6A) Regulations may make provision about the circumstances in which a notice which is not a notice of complaint is to be treated as a notice of complaint for the purposes of this section or any provision made under it.”

Page 3, line 37, at end insert—

“( ) Regulations may make provision for a procedure whereby—

(a) a complainant may apply to the court for a declaration that his complaint meets the basic requirements of a libel claim; or

(b) a website operator or the person who posted the statement complained of may apply to the court for a negative declaration that a notice of complaint fails to meet the basic requirements of a libel claim,

provided in each case that the party making the application complies with the procedure laid down in any such regulations.”

Page 3, line 44, at end insert—

“(9A) The defence under this section is defeated if the claimant shows that the operator of the website has acted with malice in relation to the posting of the statement concerned.”

Page 4, line 4, after “journal” insert “(whether published in electronic form or otherwise)”

Page 5, line 39, at end insert “or its auditors”

Page 8, line 16, 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;

(b) there is a prima facie 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.”

Page 8, line 31, after “gives” insert “final”

Page 9, line 5, at end insert “, or

(b) any person who was not the author, editor or publisher of the defamatory statement to stop distributing, selling or exhibiting material containing the statement.

(1A) In this section “author”, “editor” and “publisher” have the same meaning as in section 1 of the Defamation Act 1996.”

Insert the following new Clause—

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

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 or malicious falsehood.”

Insert the following new Schedule—

1 An Independent Regulatory Board must provide an Arbitration Service in relation to defamation and related civil legal claims drawing on independent legal experts on a cost-only basis to the subscribing member.

2 The arbitration rules must provide for a fair, quick and inexpensive process, which is inquisitorial and free for complainants to use (save for a power to make an adverse order for the costs of the arbitrator if proceedings are frivolous or vexatious).

3 The arbitrator shall have the powers set out in section 48(3) to (5) of the Arbitration Act 1996.

4 The arbitrator must be able to hold hearings where necessary or dispense with them where not necessary.

5 The process must include provision for frivolous or vexatious claims to be struck out at an early stage.”

Insert the following new Schedule—

1 This Schedule provides the method by which the Recognition Commission may be constituted for the purposes of this Act.

2 Appointments to membership of the Recognition Commission will be made by the Lord Chief Justice.

3 An individual may be appointed only if he or she has consented to act and is—

(a) a present or former Civil Service Commissioner;

(b) a present or former holder of high judicial office (within the meaning of Part 3 of the Constitutional Reform Act 2005); or

(c) a person who in the opinion of the Lord Chief Justice is suitable for appointment having regard to their reputation and experience and is independent of all political parties and all media organisations.

4 The Recognition Commission must consider whether an Independent Regulatory Board body has—

(a) sufficient guarantees of independence, including suitable independent, fair and transparent procedures for appointments and funding,

(b) suitable functions, powers, personnel and resources to ensure that it can fulfil its principal objects effectively,

(c) an appropriate standards code,

(d) an arbitration service able to deal with defamation and related civil claims, effective processes for upholding standards,

(e) an efficient procedure for handling complaints, and

(f) is open to all news publishers.

5 The Recognition Commission must review a recognised regulator at least once during the period of two years beginning with the date of certification, and at intervals of not more than three years after that.

6 If having reviewed a body the Recognition Commission is no longer satisfied that it complies with paragraph 4, the Recognition Commission must consult the body and give directions designed to ensure that the body complies with paragraph 4 within a reasonable time.

7 If the body fails to comply with directions given under paragraph 6 the Recognition Commission must revoke the body’s certification.

8 The Recognition Commission shall not be involved in the regulation of any subscriber to an Independent Regulatory Board.”