Draft Defamation Bill - Joint Committee on the Draft Defamation Bill Contents

Conclusions and recommendations



In summary, the operation of the civil law, including defamation claims, has been much reviewed in recent years, often at the Government's instigation, leading to some concern that there has been review at the expense of action. The publication of the draft Bill represents a welcome indication that long overdue legislation is finally to be delivered. We hope that this intention is realised. (Paragraph 6)

We note that the Government's response to the recent very public clash between a privacy injunction and parliamentary privilege was to establish a committee to consider these issues. This does not absolve the Government of its responsibility to develop a coherent and principled vision for what should be the interaction of the rights of privacy, reputation and freedom of expression rather than finding itself buffeted by successive tabloid or online revelations and controversial court decisions. (Paragraph 13)


Freedom of expression/protection of reputation: some aspects of current law and procedure should provide greater protection to freedom of expression. This is a key foundation of any free society. Reputation is established over years and the law needs to provide due protection against unwarranted serious damage;

Reducing costs: the reduction in the extremely high costs of defamation proceedings is essential to limiting the chilling effect and making access to legal redress a possibility for the ordinary citizen. Early resolution of disputes is not only key to achieving this, but is desirable in its own right—in ensuring that unlawful injury to reputation is remedied as soon as possible and that claims do not succeed or fail merely on account of the prohibitive cost of legal action. Courts should be the last rather than the first resort;

Accessibility: defamation law must be made easier for the ordinary citizen to understand and afford, whether they are defending their reputation or their right to free speech; and

Cultural change: defamation law must adapt to modern communication culture, which can be instant, global, anonymous, very damaging and potentially outside the reach of the courts.


We recommend that the Government has particular regard to the importance of freedom of expression when bringing forward this Bill and developing proposals in its broader consideration of the law relating to privacy. (Paragraph 18)

Substance of the draft Bill


The Government should monitor whether, in due course, the codification carried out by the Bill is achieving its goal of improving accessibility and clarity of the law. (Paragraph 20)

It is essential that the Government makes clear, in a way that the courts can take into account, during the passage of the Bill if not before, when it is seeking to make changes of substance to the law and when it is simply codifying the existing common law. We have sought to make this distinction clear in the specific changes to the draft Bill that we propose. In future, we recommend that the Government always makes clear at the date of publication whether the clauses of a draft Bill are intended merely to codify the existing law, or to codify with elements of reform. There should be no ambiguity over this important issue. (Paragraph 21)


We conclude that the presumption in favour of jury trials works against our core principles of reducing costs by promoting early resolution and, to a lesser degree, of improving clarity. We support the draft Bill's reversal of this presumption, so that the vast majority of cases will be heard by a judge. (Paragraph 24)

We believe that the circumstances in which a judge may order a trial by jury should be set out in the Bill, with judicial discretion to be applied on a case-by-case basis. These circumstances should generally be limited to cases involving senior figures in public life and ordinarily only where their public credibility is at stake. (Paragraph 25)


We recommend replacing the draft Bill's test of "substantial harm" to reputation with a stricter test, which would have the effect of requiring "serious and substantial harm" to be established. (Paragraph 28)

The threshold test should be decided as part of the proposed early resolution procedure and any claim that fails to meet this test should be struck out. (Paragraph 29)


When deciding whether publication was responsible, the court should have regard to any reasonable editorial judgment of the publisher on the tone and timing of the publication. (Paragraph 35)

The judge who upholds a public interest defence should make it clear when the truth of the allegation is not also proven. It may be appropriate, depending on the facts of the case, for the judge to order a summary of his or her judgment to be published, to make this clear. This would help to protect the reputation of the claimant, but without the practical and legal complications associated with declarations of falsity. The Ministry of Justice should work with the Lord Chief Justice and senior members of the judiciary to implement this reform. (Paragraph 36)

On balance, we support the broad approach that is taken by the Government to the public interest defence, although in some detailed respects we prefer the approach of Lord Lester's Bill. (Paragraph 37)


We recommend that the name of the "truth" defence be changed to "substantial truth". [...] We recommend that the Government includes Lord Lester's provision as to what is required to prove the truth of a single allegation. (Paragraph 38)

We recommend that a court presiding over a defamation case should be given the power to order the defendent to publish, with proportionate prominence, a reasonable summary of its judgment. (Paragraph 40)


We support the Government's proposal to place the defence of honest opinion on a statutory footing as part of the draft Bill. We are not, however, persuaded that the draft Bill makes the law clearer, simpler or fairer to the ordinary person than it is at present. As a result, we recommend a series of amendments to the draft Bill. (Paragraph 43)


Academic and scientific debate

We recommend that a provision is added to the draft Bill extending qualified privilege to peer-reviewed articles in scientific or academic journals. (Paragraph 48)

We recommend that the Government prepares guidance on the scope of this new type of statutory qualified privilege in consultation with the judiciary and other interested parties. (Paragraph 49)

Protecting the democratic process

We recommend adding a provision to the Bill which provides the press with a clear and unfettered right to report on what is said in Parliament and with the protection of absolute privilege for any such report which is fair and accurate. (Paragraph 51)

We recommend that the Government adds a provision in the Bill protecting all forms of communication between constituents and their MP (acting in his or her official capacity as an MP) by qualified privilege. (Paragraph 52)


We believe that the extent of libel tourism has been exaggerated in some quarters but, in line with our core principle of protecting freedom of speech, we believe that the courts would benefit from more robust powers to prevent unwarranted legal action in this country. This would also help reduce any international chilling effect. Foreign parties should not be allowed use of the courts in this country to settle disputes where the real damage is sustained elsewhere or where another jurisdiction is more appropriate. We therefore support the thrust of the Government's proposals but require some modifications, particularly to clarify that residents of England and Wales are not prevented from taking action here against an overseas defendant for damage caused abroad where the current law permits it. [...] We recommend that the Government should provide additional guidance on how the courts should interpret the provisions relating to libel tourism. We also believe that in such cases the courts should have regard to the damage caused elsewhere in comparison to the damage caused here. (Paragraph 56)


Single publication rule

In our view the single publication rule should protect anyone who republishes the same material in a similar manner after it has been in the public domain for more than one year. Further, the Government must clarify that merely transferring a paper-based publication onto the internet, or vice versa, does not in itself amount to republishing in a "materially different" manner, unless the extent of its coverage in the new format is very different. (Paragraph 59)

Innocent dissemination

We recommend that the Government amends the "innocent dissemination" defence in order to provide secondary publishers, such as booksellers, with the same level of protection that existed before section 1 of the Defamation Act 1996 was introduced. (Paragraph 60)


Clause 1: Substantial harm

We recommend replacing the draft Bill's test of "substantial harm" to reputation with a stricter test, which would have the effect of requiring "serious and substantial harm" to be established. (Paragraph 62)

Clause 2: Responsible publication on matter of public interest

The Reynolds defence of responsible journalism in the public interest should be replaced with a new statutory defence that makes the law clearer, more accessible and better able to protect the free speech of publishers. The Bill must make it clear that the existing common law defence will be repealed. (Paragraph 63)

Overall, we support the approach that is taken in clause 2 of the Bill. In particular, we agree that the term "public interest" should not be defined. [...] The list of factors that is used to determine whether a publisher has acted responsibly should be amended as follows:

a)  A new factor should be added that refers to the "resources" of the publisher;

b)  A reference to "the statement in context" should be added to clause 2(1)(c);

c)  The term "urgency" should be removed from clause 2(1)(g) and replaced with a more general test of whether "it was in the public interest for the statement to be published at the time of publication";

d)  The reference to whether the publication draws "appropriate distinctions between suspicions, opinions, allegations and proven facts" at clause 2(1)(h) should be removed; and

e)  When deciding whether publication was responsible, the court should have regard to any reasonable editorial judgment of the publisher on the tone and timing of the publication. (Paragraphs 64 and 65)

We recommend that the "reportage" defence at clause 2(3) is reformulated as a new matter to which the court may have regard under clause 2(2) namely "whether it was in the public interest to publish the statement as part of an accurate and impartial account of a dispute between the claimant and another person." (Paragraph 66)

Clause 3: Truth

We recommend that the name of the "truth" defence be changed to "substantial truth" which better describes the nature of the test that is applied. We also recommend that the Government includes a provision, in line with Lord Lester's approach, to make clear that a defamation claim should fail if what remains unproved in relation to a single allegation does not materially injure the claimant's reputation with regard to what is proved. This should assist in providing clarity. (Paragraph 67)

The Bill should be amended, if necessary by a new clause, to provide the judge deciding a defamation case at final trial with the power to order the defendent to publish, with proportionate prominence, a reasonable summary of the court's judgment. In cases where media and newspaper editors are responsible for implementing such orders they should ensure that the summary is given proportionate prominence. (Paragraph 68)

Clause 4: Honest Opinion

We support the Government's proposal to place the defence of honest opinion on a statutory footing, subject to the following amendments:

a)  The term "public interest" should be dropped from the defence as an unnecessary complication;

b)  The Bill should not protect "bare opinions". It should be amended to require the subject area of the facts on which the opinion is based to be sufficiently indicated either in the statement or by context;

c)  Neither the Government's draft Bill nor Lord Lester's Bill imposes any requirement that the commentator need know the facts relied on to support the opinion. In line with our concern to improve clarity, we welcome this change, which removes an undesirable layer of complexity;

d)  The Bill should require the court, when deciding whether an honest person could have held the relevant opinion, to take into account any facts that existed at the time of publication which so undermine the facts relied on that they are no longer capable of supporting the opinion;

e)  The Bill should require the statement to be recognisable as an opinion, in line with Lord Lester's Bill; and

f)  The vague reference to "privilege" must be clarified to make it clear that this term is confined to the absolute or qualified privilege which presently attaches at common law or by statute to the fair and accurate reporting of various types of public proceedings or notices. (Paragraph 69)

Clause 5: Privilege

Qualified privilege should be extended to fair and accurate reports of academic and scientific conferences and also to peer-reviewed articles appearing in journals. (Paragraph 70)

Clause 6: Single publication rule

The single publication rule should protect anyone who republishes the same material in a similar manner after it has been in the public domain for more than one year. It should be clarified that the simple act of making a paper-based publication available on the internet, or vice versa, does not in itself amount to republishing in a "materially different" manner. (Paragraph 71)

Clause 7: Action against a person not domiciled in the UK or a Member State etc

The Bill should make clear that residents in England and Wales may sue in this jurisdiction in respect of publication abroad provided there has been serious and substantial harm suffered by them. In particular, this section should not be applicable to residents of England and Wales who wish to sue in respect of publication abroad where there is permission under the current law. The clause should be confined to foreign parties using English courts to resolve disputes where the principal damage has not been suffered here. In line with the Lord Lester Bill, the courts should be required, when determining this issue, to assess the harm caused in this country against that caused in other jurisdictions. (Paragraph 72)

Clause 8: Trial to be without a jury unless the court orders otherwise

There should be added provisions setting out the circumstances in which a trial by jury may be ordered. These circumstances should generally be limited to cases involving senior figures in public life and ordinarily only where their public credibility is at stake. (Paragraph 73)

Consultation issues

Early resolution and cost control

The Government's proposal

We agree with the Government's intention of promoting early resolution by allowing the judge to determine key issues in question at an initial hearing—within a few weeks, certainly not months—and believe that this will go a significant way towards improving the chances of early resolution. (Paragraph 77)

The changes to procedures proposed by the Government are largely a tightening up of existing mechanisms: they cannot be seen as radical and do not go far enough towards reducing costs to the extent that legal action will be realistically accessible to the ordinary citizen. (Paragraph 78)

A new approach

We propose an approach which is based upon strict enforcement of the Pre-Action Protocol governing defamation proceedings, and has three elements: a presumption that mediation or neutral evaluation will be the norm; voluntary arbitration; and, if the claim has not been settled, court determination of key issues using improved procedures. (Paragraph 79)

Initial stages of action: mediation or evaluation

We believe that ordinarily the first step following the initial exchange of letters under the Pre-Action Protocol should (in the absence of an offer of amends) be mediation or assessment by a suitably qualified third party, known as "early neutral evaluation".[...] The mediation process must be swift, inexpensive and resistant to delaying tactics. To counter this latter possibility, any failure to engage constructively with the process should be punished if and when it comes to the awarding of costs. If there has been no mediation or neutral evaluation, the judge should have power to order it at the first hearing in the case. (Paragraph 82)


We encourage the Government to explore further the development of a voluntary, media-orientated forum for dispute resolution in the context of the current review of the regulatory regime governing the media. (Paragraph 84)

Arbitration represents a cost-effective alternative to the courts, and helps to reduce the impact of any financial inequality between the parties. The financial and other incentives to use arbitration must be strengthened as far as possible. (Paragraph 85)

Proceedings reaching court

To bring costs down further, more radical changes to the way in which our courts operate—not just in defamation cases—would need to be contemplated. Some suggestions include the application of maximum hourly rates, mandatory capping of recoverable costs, paper hearings with limits on written submissions and changes to the Conditional Fee Agreement regime. Such issues extend well beyond our brief. Nevertheless, we recommend that the Government gives serious consideration to these and other measures, which are essential if court costs are to be attacked in a more radical and effective way. In the meantime, we believe that more aggressive case management can help to minimise costs, if it is applied fairly and consistently. We recommend that the Ministry of Justice and the judiciary take measures to ensure that judges personally and consistently manage defamation cases in a robust manner that minimises delays and costs incurred by both parties. (Paragraph 86)

Reform of civil litigation costs and access to justice

It is outside our remit to explore the impact of the Government's separate proposals on civil litigation costs reform in detail. Nonetheless we are sufficiently concerned about them to ask the Government to reconsider the implementation of the Jackson Report in respect of defamation actions, with a view to protecting further the interests of those without substantial financial means. (Paragraph 89)

Conclusions on Procedural reform

We recommend that the Ministry of Justice prepares a document setting out in detail the nature of the rule changes required to ensure that the Civil Procedure Rule Committee will implement the procedural changes we recommend in this section of our Report. This document should be published at the same time as the Bill. (Paragraph 91)



We acknowledge the challenges that any national legislature faces when acting alone in relation to a global issue but do not regard these as an excuse for inaction. ...Specifically, we propose:

a)  A new notice and take-down procedure to cover defamation in the online environment; and

b)  Measures to encourage a change in culture in the way we view anonymous material that is user-generated, including via social media. (Paragraph 93)

Social networking, online hosts and service providers

We recommend that the Government takes action by:

  • Ensuring that people who are defamed online, whether or not they know the identity of the author, have a quick and inexpensive way to protect their reputation, in line with our core principles of reducing costs and improving accessibility;
  • Reducing the pressure on hosts and service providers to take down material whenever it is challenged as being defamatory, in line with our core principle of protecting freedom of speech; and
  • Encouraging site owners to moderate content that is written by its users, in line with our core principle that freedom of speech should be exercised with due regard to the protection of reputation. (Paragraph 100)

Contributions published on the internet can be divided into those that are identifiable, in terms of authorship, and those that are unidentified, as described above. In respect of identified contributions, we recommend the introduction of a regime based upon the following key provisions:

a)  Where a complaint is received about allegedly defamatory material that is written by an identifiable author, the host or service provider must publish promptly a notice of complaint alongside that material. If the host or provider does not do so, it can only rely on the standard defences available to a primary publisher, if sued for defamation. The notice reduces the sting of the alleged libel but protects free speech by not requiring the host or service provider to remove what has been said; and

b)  If the complainant wishes, the complainant may apply to a court for a take-down order. The host or service provider should inform the author about the application and both sides should be able to submit brief paper-based submissions. A judge will then read the submissions and make a decision promptly. Any order for take-down must then be implemented by the host or service provider immediately, or they risk facing a defamation claim as the publisher of the relevant statement. The timescale would be short and the costs for the complainant would be modest. (Paragraph 104)

We recommend that any material written by an unidentified person should be taken down by the host or service provider upon receipt of complaint, unless the author promptly responds positively to a request to identify themselves, in which case a notice of complaint should be attached. If the internet service provider believes that there are significant reasons of public interest that justify publishing the unidentified material—for example, if a whistle-blower is the source—it should have the right to apply to a judge for an exemption from the take-down procedure and secure a "leave-up" order. We do not believe that the host or service provider should be liable for anonymous material provided it has complied with the above requirements. (Paragraph 105)

The Government needs to frame a coherent response to the challenge of enforcing the law in an online environment where it is likely to remain possible to publish unidentified postings without leaving a trace. As part of doing so, the Ministry of Justice should publish easily accessible guidance dealing with complaints about online material. We recommend that the Government takes the necessary steps to implement the approach we outline. (Paragraph 107)


It is unacceptable that corporations are able to silence critical reporting by threatening or starting libel claims which they know the publisher cannot afford to defend and where there is no realistic prospect of serious financial loss. However, we do not believe that corporations should lose the right to sue for defamation altogether.[...] We favour the approach which limits libel claims to situations where the corporation can prove the likelihood of "substantial financial loss". (Paragraph 114)

We make the following additional observations:

  • The test of "substantial financial loss" should focus on whether there has been, or is likely to be, a substantial loss of custom directly caused by defamatory statements;
  • In our view, neither mere injury to goodwill nor any expense incurred in mitigation of damage to reputation should enable a corporation to bring a libel claim;
  • A corporation should not be entitled to rely on a fall in its share price to justify bringing a libel claim; and
  • Where a trading corporation can prove a general downturn in business as a consequence of a libel, even if it cannot prove the loss of specific customers or contracts, this will suffice as a form of actual loss (albeit unquantified). (Paragraph 115)

Corporations should be required to obtain the permission of the court before bringing a libel claim. (Paragraph 116)

The Ministry of Justice and the courts must be determined and creative in preventing corporations from using the high cost of libel claims to force publishers into submission. The requirement for a corporation to obtain prior permission before bringing a libel claim provides the perfect opportunity to control the corporation's recoverable legal costs before they get out of hand, whether through cost capping or otherwise. Judges must redouble efforts to make the most of their case management powers by reducing the inequality of wealth that can exist between corporations and publishers. (Paragraph 117)

Our proposal to introduce a test of "substantial financial loss" applies only to corporations or other non-natural legal persons that are trading for profit; it does not extend to charities or non-governmental organisations. [...] Trade associations that represent for-profit organisations should be covered by the new requirements that we propose. (Paragraph 118)

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Prepared 19 October 2011