Draft Defamation Bill - Joint Committee on the Draft Defamation Bill

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

2 Substance of the draft Bill

Improving clarity of the law

19. One of our core principles revolves around making it easier for the ordinary citizen to understand and use defamation law. The current law has developed through many judicial decisions of the courts over the years, which are scarcely accessible to the lay person. Not only is the law complex, it lacks clarity in some areas. As a consequence, the high degree of uncertainty in the outcome of libel claims undoubtedly serves to increase the risks and costs of proceedings, further contributing to the chilling effect. In the evidence we received there was consensus on the need for greater clarity in the law. However, there were strong differences of opinion on the benefits of seeking to enshrine existing common law in statute, often referred to as "codification", as well as disagreement on what reforms are required and the extent to which existing principles can be refined using this approach.

20. We heard strong representations from some quarters that any change in the law would inevitably lead to more litigation and less, rather than more, certainty as the new laws are tested in their application in the courts. This argument can be advanced against all new legislation. In our view, any period of uncertainty as the new law takes effect does not outweigh the potential long term gains of having many core aspects of defamation law established in one place, readily accessible to all. Other cited advantages of the common law are that the published body of public judgments helps to provide greater certainty and also gives the courts the flexibility to respond to new developments, such as technological innovation. We have considered carefully the potential advantages and disadvantages of codifying significant aspects of defamation law, particularly in respect of the defences of truth, honest opinion and reporting privilege. In general, we have come down in favour of some codification, in line with our core principle of improving accessibility.[24] In other areas we recognise that the common law continues to have an important role to play. 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.

21. The draft Bill seeks to codify the existing law in some areas: the Secretary of State explained that "the objective was to clarify the situation and put it in modern language in statute without seeking to change the law."[25] But it is clear from the consultation document that in other areas the intention is to codify with some elements of reform. We have a general concern that the Government has not always been clear when the intention is to replace the existing common law with a codified statutory version and when the law is being reformed as well as codified. As many witnesses pointed out, a lack of clarity on this point could significantly increase uncertainty and levels of litigation.[26] If the changes being introduced by the Bill are not to risk increasing uncertainty, 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 this chapter. 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.

Trial by jury

22. Under the law as it stands any party involved in a defamation case may apply for trial by jury. This application can only be refused by the court where the trial cannot "conveniently" be conducted with a jury, for example if it requires lengthy examination of documents or scientific investigation.[27] For ease of reference we describe these criteria as "the convenience test". In recent years judges have increasingly found the convenience test to be satisfied and then exercised their discretion to order trial by judge alone. In the years 2008 and 2009, only eight out of the 21 defamation claims that reached the High Court were decided by a jury.[28] The Government's draft Bill seeks to abolish the convenience test and with it the current presumption in favour of jury trials. This would bring defamation broadly into line with the vast majority of civil cases.[29] Under the proposed change, rather than responding to any request by either party, the judge would only order a trial by jury where it was in the interests of justice to do so. The draft Bill provides no guidance on what this might mean in practice.

23. The Government's consultations revealed "widespread support" for the removal of the presumption in favour of jury trial.[30] The evidence we received reflected this assessment. The few who favoured the current law did so on the grounds that trial by jury was important to maintaining public confidence in trials which often involve figures in political or other authority, and that when assessing damage to reputation and the determination of the ordinary meaning of words, the view of a jury, as representing the general public, was more appropriate than that of a judge.[31] The main arguments against trial by jury focus on the negative impact that the possibility of jury trial often has on the chances of resolving a claim early by the resolution of key issues by the judge, which may either determine the case or lead to prompt settlement. It is commonly not possible to apply the convenience test fairly at an early stage, by which time very substantial costs have often already been incurred. At present it falls to a jury to determine key issues of fact, such as what defamatory meaning the words bear and whether they are statements of fact or opinion. Such issues are often critical to the outcome of the case. Unless and until the mode of trial has been determined as being by judge alone, judges can only make early rulings on these issues where they are satisfied that any reasonable jury, properly directed, would be in agreement. Delaying the resolution of these issues often prolongs cases and substantially increases the costs. The possibility of trial by jury may also be exploited by a party for precisely that reason.[32] The increased costs associated with trial by jury have been estimated at 20-30% and the whole process may take up to twice as long.[33] Another drawback of jury trials is that they do little to add clarity to how the law is applied, as there is no reasoning given to support decisions relating to meaning and the other defences. In contrast, a decision by a judge is supported by a reasoned judgment (that is subject to appeal) which sets out precisely and publicly how the law has been interpreted and applied.

24. We recognise the force of the argument that certain issues, such as what is and is not in the public interest, are more appropriately determined by a jury of ordinary citizens.[34] But, on balance, we consider that any perceived benefits of a judgment by a jury do not outweigh the enormous costs in terms of time and money that this option entails and the precluding effect these can have. Also, reasoned judgments often confer significant benefit in terms of transparency and fairness. In our view, jury trials are not only more expensive in themselves; their availability can serve to work against early settlement. The reversal of the presumption in favour of jury trials is essential to many of the recommendations we make, particularly those relating to early resolution. 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.

25. We do not share the minority view that jury trials should be abolished altogether in defamation cases.[35] We accept that there may be exceptional circumstances in which trial by jury is in the public interest. Opinions amongst our witnesses on what these precise circumstances should be varied but we found there was a general view that it may be appropriate for cases involving the credibility of those in positions of special power and authority in society to be tried by jury so as to retain confidence in the administration of justice. This would be subject to judges using their discretion to decide whether jury trial is appropriate. We can, for example, see that in some cases there would be very substantial benefits in having a reasoned judgment, which a jury cannot give, and in other cases jury trial would still be disproportionate. It would be undesirable to restrict this discretion, but it should be possible to outline general principles. We intend trial by jury to be exceptional. A libel action brought by a serving judge is an obvious example where a jury trial may well be appropriate. In accordance with our core principle of improving accessibility by providing clarity on the face of the Bill, 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.

Improving protection of freedom of speech

26. Publishers repeatedly told us that the cost, length and complexity of libel proceedings effectively requires them to withdraw or modify their work when faced with the potentially ruinous consequences of ignoring a threatening letter from a solicitor, irrespective of its legal merits. This applies not only to individuals who publish at home on a blog or newsletter without access to legal advice and the protection of an employer, but also to scientists, consumer organisations, non-governmental organisations, journalists, booksellers and many other types of professional publisher. As we indicate in Chapter 1, we are persuaded that free speech is being threatened, or "chilled", to an unacceptable degree. A situation has arisen where many publishers feel cowed every time that someone disputes what they have said or wish to say. The boundaries of free speech should not be dictated by lawyers and their clients relying on bullying tactics to intimidate publishers into silence. We propose in Chapter 3 an overarching solution that reduces cost and complexity through a range of procedural and substantive changes to the law. In this section, we focus on the discrete issue of publishers facing legal threats in relation to trivial, insubstantial or irreverent remarks that should not take up the time and resources of the courts and publishers.

27. Under the existing common law, the courts have power to throw out any claim that fails to meet a "threshold of seriousness", including where no "real and substantial" wrongdoing can be demonstrated.[36] In practice, this represents a surprisingly low hurdle for would-be claimants to overcome since these tests have been interpreted as being met whenever more than minimal harm is caused to the claimant's reputation.[37]The draft Bill would replace the existing common law tests with a new statutory provision requiring the claimant to prove "substantial harm" to their reputation as part of bringing a claim. The lack of clarity in the application of this test was apparent from the evidence.[38]The Secretary of State for Justice, the Rt Hon Kenneth Clarke MP, suggested during oral evidence that it would raise the bar by making it harder for claimants to pursue trivial claims.[39] This was subsequently contradicted by the Minister of State, the Rt Hon Lord McNally, who wrote to us stating that the new test is intended to reflect the existing law, merely giving it new prominence rather than a stricter meaning that makes it harder to bring a libel claim.[40]This is not likely to help promote the free speech of publishers. We believe it important that the draft Bill is strengthened; it must ensure that wealthy individuals and organisations cannot stifle comment and debate that has no significant impact on their reputation. The public interest requires our law and its procedures to prevent trivial claims from being started and, where that happens, ensure that they are stopped.

28. One proposal made by a number of witnesses is to require claims to be "serious" or "serious and substantial" in order to proceed.[41]We consider that a threshold test that focuses on the seriousness of the allegation would raise the bar in a meaningful way and give greater confidence to publishers that statements which do not cause significant harm, including jokes, parody, and irreverent criticism, do not put them at risk of losing a libel claim. The threshold test should relate to harm to reputation and not to feelings, although the latter is an important aspect of damages if an action proceeds. Due allowance should be made for such matters as the nature of the charge, prompt apologies, the width of publication and any other relevant background. We accept that there may be a period of litigation while the courts spell out the precise meaning of "serious and substantial" as part of the threshold test, but over time this will create a better balance between free speech and reputation. Therefore, 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.

29. A new harm test will only better protect publishers if the courts ensure that trivial claims are dismissed promptly before unnecessary time and money is expended. The Ministry of Justice plans to make sure that a judge determines whether the harm test is satisfied at a very early stage in legal proceedings. It has stated that judges will be able to use their existing powers to dismiss any claim that fails to meet the required threshold of seriousness. This is essential: 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.[42] Some witnesses expressed legitimate reservations that determining the degree of harm at an early stage could lead to costs being "front-loaded" at an early stage of the proceedings. We do not pretend that early resolution comes without the risk of increasing costs at the start of a claim, but the potential advantage of sifting out weak cases will be a major advantage to both sides: the winning party will not be dragged through lengthy proceedings where that can be avoided and the losing party will have their case dismissed before fruitlessly investing even more of their time and resources into it.

30. Further, the context in which a statement is made must be considered carefully when deciding whether the harm test is satisfied. For instance, the sting of a defamatory allegation is likely to be lessened or removed altogether where the publisher makes a rapid correction or apology. Equally, there may be less chance of serious harm where a notice is attached to material on the internet indicating that it has been challenged as libellous.[43] The law must encourage attempts by publishers to correct false information in support of responsible free speech and the protection of reputation; this should include recognising that prompt action can undo the risk of harm. As we also mention in our section on the internet,[44] the court must additionally take into account the nature of the setting in which the statement was made as part of considering its full context. The Ministry of Justice should work with the judiciary to ensure that this approach is implemented in the courts in relation to the draft Bill's new test.

Responsible journalism in the public interest

31. It is vitally important to the health of society that issues of public interest can be discussed and debated. One of the most significant recent developments in defamation law was the creation of a specific defence to protect statements that are published responsibly in the public interest.[45] The courts have identified ten non-exhaustive guidelines for use in deciding whether a publication was made responsibly as part of what is commonly known as the Reynolds defence.[46]

32. Our inquiry has revealed universal support for a dedicated public interest defence, particularly to protect investigative journalism that legitimately goes beyond the boundaries of what can be proved to be true. In this respect, the public interest (Reynolds) defence has been relied upon to protect publications relating to the funding of terrorism, involvement in international crime, police corruption, drug taking in sport, and the use of child labour, among other issues.[47]

33. There is, however, debate about whether the current defence is operating satisfactorily.[48] The most sustained criticisms are that it is unpredictable, inflexible, complex and costly.[49] More specifically, we have heard concerns that the ten non exhaustive responsibility guidelines have sometimes been treated as a rigid checklist and are not always appropriate to publishers who fall outside the traditional media, including non-governmental organisations, notwithstanding recent efforts by the courts to put this right.[50]

34. The Government's draft Bill adopts a broadly similar approach to Lord Lester's Bill by placing the existing defence on a statutory footing, although there are significant differences in the detailed wording. In doing so it seeks to improve the defence by modifying some of the factors that are used to determine responsibility. The clause seeks to make clear that these factors are treated as an illustrative list of issues to be taken into account rather than a rigid series of tests.[51] The aim is to make the defence clearer and simpler for publishers to rely upon.

35. There are two general arguments of principle that we considered during our inquiry in relation to the public interest defence. First, there were calls for a more radical overhaul of the existing defence with a view to protecting any statement on a matter of public interest provided the author was not acting recklessly or maliciously.[52] This would dramatically widen the scope of the defence and bring it closer to the United States model. On balance, we are in agreement with those witnesses who felt that this approach is inappropriate.[53] It would offer insufficient protection to people whose reputation is harmed by untruths and overly focus on the mind of the publisher rather than the objective responsibility of the publication.[54] We accept that publishers often face difficult editorial decisions concerning what to publish, and that on some aspects of a publication their reasonable judgments should be given due weight. A better approach, in our view, is to require the following: 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.[55] This is consistent with the approach adopted elsewhere in Europe and was favoured by Lord Lester, who told us that the Bill "should allow sufficient room for editorial discretion, so that the courts do not sit in judgment on matters of editorial judgment beyond their proper province."[56] This should provide some comfort to publishers who face pressured decisions about publication and, in so doing, we hope that it will provide greater protection to free speech, whilst not risking the irresponsible undermining of an individual's reputation.

36. Second, a wide range of witnesses called for declarations of falsity to be made available as a remedy in any case where the publisher relies on what is currently the Reynolds defence.[57] The rationale is that a person may not be able to win a libel claim in relation to an untrue and damaging allegation if it was published responsibly in the public interest. A declaration of falsity would give that person the ability to vindicate their reputation without removing the public interest defence from the publisher. The aim of using declarations of falsity to protect the truth and to vindicate a person's reputation is undeniably attractive. Ultimately, however, we do not accept that they should be made available. It is not the function of the courts to determine categorically that something is false; such a remedy could lead to a declaration of falsity being made in relation to a statement which is later proved to be true. There may also be legitimate reasons for a publisher being unable to prove the truth of an allegation. For instance, the publication may be based on information provided by a confidential source who cannot openly verify its truth. A preferable approach, in our view, is as follows: 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.

37. We have already set out our views on codifying the law.[58] 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.[59] Reforming this vitally important public interest defence within the draft Bill has the advantage of making it more accessible to publishers and the ordinary citizen.[60] It also provides an opportunity to improve the existing defence by making it clearer and better able to protect free speech, including by making it apply more effectively outside the mainstream media to the growing number of citizen publishers. To achieve this aim, we recommend various detailed amendments to the draft Bill's public interest defence as outlined at paragraphs 63-66 below.

Protecting the truth

38. In defining one of our Report's core principles as the protection of freedom of speech we emphasised that the law should encourage this right to be exercised responsibly. Having respect for the truth is fundamental to what we mean by this. From the perspective of free speech, any person who publicly states a matter that is substantially true should never be liable to pay damages for defamation, irrespective of the harm or embarrassment that may be caused.[61] The courts have for many years recognised the common law defence of "justification" which protects publications that are substantially true. Where multiple allegations are made, the 1952 Defamation Act ensures that a claimant will fail if, having regard to those allegations proved to be substantially true, the claimant's reputation is not materially injured by those allegations that are not.[62] This is a fundamental defence in this area of law. The draft Bill would replace the current defence with a statutory equivalent which goes under the more accurate name of "truth". We welcome this proposal, which will help to make the law clearer and more accessible. However, 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. Our attention was drawn to a proposal made by Lord Lester which provides that in relation to a single allegation, a claimant will still fail if what remains unproved does not materially injure the claimant's reputation with regard to what is proved. This may well already be covered by the word "substantially" in clause 3(1) of the Bill but this opportunity should be taken to remove any uncertainty. We recommend that the Government includes Lord Lester's provision as to what is required to prove the truth of a single allegation.[63]

39. While there is great value in standing up for the truth and holding the powerful to account, the public interest is not served by irresponsible publishers failing to correct statements that are demonstrably inaccurate and untrue. Damages awards may provide some compensation, but they may be little comfort to someone whose friends, relatives and business associates have been exposed to untrue allegations about them, which are not publicly corrected. Many witnesses remarked that most people who consider bringing a claim for defamation are far more concerned about setting the record straight than recovering damages.[64]

40. In very limited circumstances under the statutory summary relief procedure,[65] the court has the power to order a summary of its judgment to be published in terms agreed by the parties or determined by the court.[66] We considered whether this power should be extended to all defamation proceedings. Where a publisher has got something seriously wrong, the public interest and the interests of the victim require that a suitable correction is made. We share the dissatisfaction expressed by many about the practice of some newspapers of hiding away corrections in materially less prominent parts of the paper. We do not accept the protestations of newspaper editors that this does not go on. Mr Dacre told us that it is "one of the great myths of our time that newspapers somehow bury these things at the back of the book".[67] We point to the recent example when the Daily Mail, along with seven other newspapers, had to apologise and pay damages in respect of wrong allegations in highly prominent coverage—on the front and inside pages—of the questioning of a murder suspect. As a result, the Daily Mail reported this apology in 83 words on the inside middle of page two—hardly proportionate on any objective view.[68] In principle, we are attracted to the idea of the retraction or correction having a degree of prominence that is proportionate to the original article and would support efforts to make this standard practice. We recommend that a court presiding over a defamation case should be given the power to order the defendant to publish, with proportionate prominence, a reasonable summary of its judgment. This is in line with the Press Complaints Commission (PCC) Editors' Code of Practice that already requires a newspaper to publish the outcome of an action in which it may be involved.[69] There is scope for the PCC to monitor its members and to assist the court in enforcing compliance with this proposal.

41. Several witnesses also raised the issue of whether the court should have the power to order the publication of an apology. Not surprisingly, media representatives generally were hostile to the prospect of mandatory apologies, believing that this was an infringement of editorial control and, potentially, the ECHR right to freedom of speech.[70] They agreed with most witnesses that voluntary apologies ought substantially to reduce damages awards whenever made promptly and fully. We see no value in forcing a person to make an apology that is neither meaningful nor sincere.

Freedom to express opinions

42. It has been recognised for many years that striking a fair balance between free speech and reputation requires the law of defamation to protect anyone who publishes their honestly held opinion. Some expressions of opinion, most obviously value judgments, may by their nature be incapable of being proved to be right or wrong. The important public interest in issues being discussed and debated would be seriously damaged if proving the truth of a statement was the only defence available to a libel claim. Yet the law should not allow critics to ride roughshod over the reputation of others simply by dressing up any kind of attack as an expression of opinion. There has to be a careful consideration of what constitutes an opinion and the circumstances in which a defamatory opinion ought to be legally protected.

43. The Supreme Court recently carried out this challenging exercise by setting out the circumstances in which the existing comment defence is available, including by changing its name to "honest comment".[71] A number of witnesses suggested that the defence should not be further reformed given this important development.[72] We note, however, that the most senior judge in the Supreme Court, Lord Phillips of Worth Matravers, stated that the defence should be reviewed either by Parliament or the Law Commission.[73] He felt that it was inappropriate for the Supreme Court to carry out a fundamental reshaping of the underlying policy and scope of the defence beyond the limited issues of law arising on the facts of that case. In line with Lord Phillips' request for the defence to be examined, and further to our earlier conclusion on the merits of codification, 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. These are outlined in paragraph 69.

Absolute and qualified privilege

44. A person who publishes a defamatory statement may be able to rely on the defences of "absolute" and "qualified" privilege in a wide variety of circumstances. The defence of absolute privilege, as its name suggests, protects the publisher whatever their motive for publication. The defence of qualified privilege is defeated if the publisher was malicious in the sense that the dominant motive for publication was improper. Examples of absolute privilege include testimony by a witness in court and contemporaneous reports of proceedings in open court. Although often classified as "Parliamentary privilege", Members of Parliament participating in Parliamentary proceedings are similarly protected. This category of privilege reflects a particularly strong public interest in there being no inhibition on being able to speak or write freely even if there is an adverse impact on the other person's reputation. The defence is central to the proper functioning of an orderly and democratic society.

45. Qualified privilege can protect private communications that contain defamatory material where there is a shared duty and interest between the publisher and the recipient. This defence is well established at common law. We agree that this aspect of qualified privilege is best left to the common law to develop. However, qualified privilege also applies by statute to a wide range of reports of public proceedings and notices, provided the relevant material is on a matter of public concern and for the public benefit.[74]

46. The draft Bill expands the defences of absolute and qualified privilege in a number of different ways, primarily to protect publishers who report on a wider range of international legislatures, courts, tribunals, companies, and other organisations than are covered by privilege at present.[75] We strongly support this proposal, which represents helpful additional protection of freedom of expression. There are, however, two areas in which we believe that the Bill should go further in order better to protect scientific debate and the democratic process.

ACADEMIC AND SCIENTIFIC DEBATE

47. It is vital that members of the scientific and academic communities can engage in vigorous and uninhibited debate provided they do so responsibly and honestly, since their work helps to shape every aspect of the world in which we live. This includes medical research into matters of the greatest public importance. Historic examples include the safety of smoking or the risks associated with a drug such as Thalidomide, where the truth emerged over time thanks to persistent and impartial research. A process of critical review is essential through which the work of one person, or group, is published and subsequently challenged by others. It is unavoidable that these efforts to uncover the truth and expand the limits of our understanding sometimes turn out to be wrong or to clash with the commercial and personal interests of other individuals and corporate organisations within society. For example, publishing research that reveals a particular product as unsafe or inefficient could seriously damage the business of its manufacturer, but may save lives. There is convincing evidence that defamation law is being used to silence responsible members of the medical and scientific community in order to protect products and profits.[76] In particular, we were informed that 10% of all libel claims involve science and medicine, and that 80% of GPs feel inhibited in discussing medical treatments publicly due to fear of facing a claim.[77] At a cultural and social level, it is also important for historians, geographers, political scientists and other academics similarly to be able to research and publish without undue fear of litigation. We took evidence from various individuals who have first-hand experience of the lengthy and costly trauma of being dragged through the courts.[78] For most scientists and academics defending libel proceedings is unthinkable, with the effect that important issues are either not being discussed publicly or at all.[79]

48. The draft Bill goes some way towards tackling this problem by extending qualified privilege to include fair and accurate reports of what is said at a "scientific or academic conference".[80] We welcome this development, provided the conference is reputable. However, our inquiry revealed unanimous support for extending protection of qualified privilege to peer-reviewed articles published in scientific or academic journals, as recommended in 1975 by the Faulks Committee when the law of defamation was last reviewed comprehensively. Peer-reviewed articles are arguably the main platform for scientific and academic debate, and more reliable in their quality than conferences.[81] Such articles may, in principle, be protected by other types of legal privilege, including qualified privilege and the so-called Reynolds defence, but the Reynolds defence in particular is often time consuming and costly to make out.[82] In our view a proper peer review process should lead to the publication being treated as responsible and should have special protection in the public interest without the burden of having to prove "responsibility" in every individual case. Scientists and academics must not be left in fear of being sued simply for doing their job. We recommend that a provision is added to the draft Bill extending qualified privilege to peer-reviewed articles in scientific or academic journals.

49. This raises the question of whether the terms "scientific or academic conference" and "peer-reviewed article" should be defined within the Bill in order to provide clear and appropriate boundaries for these new categories of qualified privilege. The Government has stated that it would be difficult to provide a clear and comprehensive definition of "scientific and academic conference" in statute. We accept that this is correct in principle and note that no witness has suggested a suitable form of words. The same applies to the definition of "peer-review". In particular, while the basic elements of peer-review are well established, the precise nature and extent of the process varies between different publications and subjects. Representatives of leading journals did not support attempts to include a precise statutory definition.[83] We accept that leaving it up to the courts to interpret the meaning of these terms would provide greater flexibility for the future, but it would also lead to uncertainty and create greater opportunity for litigation and abuse.[84] We note that the Committee chaired by Mr Justice Faulks proposed a registration system, such that conference reports and peer-reviewed articles appearing in scientific or academic journals would only receive qualified privilege where the organiser or publisher is listed in an official register. We are not convinced by the practicality of this approach due to the large and expanding number of journals in existence (now numbering in their tens of thousands), together with the resources required to determine which journals should receive such protection, and the risk that legitimate publications may be omitted from the list by ignorance or oversight. We are also concerned about the Government being called upon to determine which scientific or academic conferences and journals are more worthy of protection than others. It is preferable for the court to determine in any particular case whether the article or report is protected. In line with our core principle of accessibility and clarity, 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. Our aim is to enhance the protection of free speech by giving certainty to publishers who report on conferences and authors who contribute peer-reviewed articles to journals, but without repealing any part of the existing law.

PROTECTING THE DEMOCRATIC PROCESS

50. The strength of our Parliamentary democracy depends on Members of Parliament being able to speak freely while fulfilling their role in Parliament, without being in fear of legal proceedings. The Bill of Rights Act 1689 has for many years provided Members with important protection in relation to anything said during Parliamentary proceedings. This is known as Parliamentary privilege and it means, for example, that a defamation claim cannot be based on statements made by Members during a debate. The precise scope of Parliamentary privilege is complex, unclear and in some respects outdated.[85] For these reasons, the Government has committed to a process of reviewing Parliamentary privilege leading to the publication of a draft Bill in due course.[86] We accept that this is a sensible course of action given the complexities that arise, but we are concerned by how much time may elapse before such a Bill reaches the statute book. Recent events have highlighted the need for more immediate and decisive action in relation to two issues: the reporting of Parliamentary proceedings by the press; and the protection offered to communications between constituents and their MP. Both require urgent legislative solutions that can subsequently be incorporated within a Privilege Bill if and when enacted.

51. First, it is of fundamental importance that proceedings in Parliament can be reported upon freely by the press to ensure that people can discover what is being said and done by elected representatives on their behalf. Our faith in this essential aspect of Parliamentary democracy and press freedom was shaken recently when the Guardian newspaper reported that it had been gagged from reporting a Parliamentary question submitted by Paul Farrelly MP. The question related to the oil company, Trafigura, which had obtained a court ordered injunction prohibiting disclosure of a confidential report concerning its activities in Ivory Coast. The court order also included a prohibition on the disclosure of Trafigura's identity and the existence of the injunction itself, making it what is known commonly as a "super-injunction". There are provisions in the common law and the Parliamentary Papers Act 1840 aimed at ensuring that the press can report on proceedings in Parliament, but these have long been considered outdated and in need of reform.[87] In this respect, the lawyers of Trafigura and the Guardian both agreed that reporting on Paul Farrelly's question would, as an unintended effect, have breached the super-injunction and therefore may have placed the newspaper in contempt of court.[88] This case, and super-injunctions more generally, were recently reviewed by a committee established by the Master of the Rolls, Lord Neuberger, which concluded in its report that "no super-injunction, or any other court order, could conceivably restrict or prohibit Parliamentary debate or proceedings".[89] We agree but equally note the report's observation that the press does not under the current law have a clear and unfettered right to report on what is said in Parliament where such reporting appears to breach the terms of a court order.[90] We find this uncertainty in the law unacceptable and in need of immediate reform. Lord Lester's Bill would have replaced the 1840 Act with a modern equivalent that is fit for purpose and which could, in our view, form a useful template.[91] 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.

52. Secondly, one of the main functions of Members of Parliament is to provide advice and representation to their constituents, which may lead to highly sensitive communications taking place between them. Less attention has traditionally been focused on the legal protection offered to these communications. In this context Lord Neuberger's report stated that they may be covered by parliamentary privilege "to a degree, and in some circumstances".[92] In particular, a defamatory communication would only be protected from court proceedings where it is closely connected to Parliamentary proceedings, such as forming part of a Member's preparation to speak in a debate or table a specific question. Where, however, the communication has no link to Parliamentary proceedings then it would not be protected by parliamentary privilege. Therefore, it could potentially lead to a defamation claim, unless an alternative defence of absolute or qualified privilege were available. John Hemming MP has drawn Parliament's attention to recent examples of constituents being told that court orders prevented them from discussing their concerns with him.[93] In our experience, some constituents do feel inhibited in what they can discuss with their MP following threatening letters from lawyers. Although we consider that qualified privilege at common law would attach to such communications, in our view the democratic process is unacceptably hindered by a lack of certainty and awareness among constituents about their right to engage in open and frank discussions with their Westminster representative. We are aware of the concern that extending absolute privilege to cover all communications between constituents and their MPs might encourage malicious complaints to MPs which damage the reputation of third parties.[94] This is a potential problem that requires careful thought, but our view is that such communication would, and should, only receive the protection of qualified privilege. However we believe that the protection is of such importance that it should be made clear by statute. 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.

REPORTING COURT PROCEEDINGS

53. As we have already indicated, the press and other publishers are protected by absolute privilege when reporting contemporaneously on what has been said during court proceedings, provided the report is fair and accurate.[95] It has been drawn to our attention that newspapers frequently cover the opening stage of criminal trials during which the prosecution's case is outlined in detail. However, there is often little or no coverage of the defendant's case, with the consequence that the public may receive an unbalanced picture of the trial and the defendant. It was encouraging to discover during our inquiry that at least some newspaper editors view this state of affairs as being problematic.[96] We heard that discussions are ongoing with the judiciary to help ensure that the media is kept informed about key stages of a criminal trial, including the defence. We encourage the press to be more proactive in making sure that their coverage of criminal trials is balanced. The MoJ should monitor the progress of ongoing discussions with the judiciary and provide support to the extent that is necessary.

Libel tourism

54. There have been growing concerns in recent years that defamation law in this country has come to be more protective of reputation than elsewhere in the world to such an extent that London has become the preferred location for defamation actions involving foreign parties with only a tenuous link to this jurisdiction. Those of most concern arise where both the claimant and defendant come from outside the EU. Some say that London has developed a reputation as the libel capital of the world and that the judgments of its courts are having a chilling effect on freedom of speech in other parts of the world. Apparently in response to this, legislation was recently introduced in the United States specifically to prevent foreign libel judgments being enforceable there.[97] The draft Bill seeks to prevent claims against defendants who are not domiciled here or in another EU member state without a strong link existing to the jurisdiction of England and Wales. It prevents a court from hearing such a case unless it is satisfied that this jurisdiction is the "most appropriate" place for a defamation action to be brought.

55. In the evidence we received, there was a divergence of views on the extent to which libel tourism remains a problem. We found that whilst there have been recent examples of foreigners attempting to use the London courts to pursue libel claims against foreign defendants with little connection to harm suffered in the UK,[98] in reality such cases are extremely rare: no similar cases have proceeded to trial in the last two years. The existing law allows the courts quite wide discretion to refuse to hear cases where another jurisdiction is more appropriate.[99] But some organisations argued that the small number of cases going before the courts does not accurately reflect the scale of the problem and the extent to which free speech is being curtailed by the threat of legal action in London. For instance, we received convincing evidence that articles in journals published internationally had to be edited or withdrawn purely because of the risk of legal action in this country.[100] This is harmful to this country's reputation as a place that values and protects free speech.

56. 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.[101] We note that the draft Bill does not give any further indication of the factors the court should bear in mind when determining the most appropriate place for the case to be heard. In line with our core principle of improving accessibility through clarity, 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.

Further protection for publishers

57. As a general rule, claims for defamation must be started within one year of publication.[102] The aim is to protect publishers from facing open-ended liability for what was said and done in the past. This widely accepted principle does not always work in practice due to a legal principle, known as the multiple publication rule, under which each republication of the material restarts the one-year period.[103] For example, a claim can be pursued in relation to paper publications, such as a printed newspaper or magazine, where a single back-copy has been sold within the last year, even though the original edition may have been published and then forgotten about many years earlier.[104] The rule operates with particular harshness in relation to many electronic communications, since the one year period restarts every time that an online article or webpage is viewed. A huge amount of published material is now stored in online archives, leaving many publishers exposed indefinitely to defamation claims.

SINGLE PUBLICATION RULE

58. We strongly support the draft Bill's introduction of a single publication rule, under which the one year period runs from the date of original publication and does not restart each time the material is viewed, sold or otherwise republished. This measure strengthens freedom of speech by providing far greater protection to publishers.[105] It equally safeguards the right to reputation since the court has discretion to extend the one-year time-period whenever it is just to do so; and, further, the new rule applies only to material that is "substantially the same" as the original publication.[106] It specifically will not apply to material that is published in a "materially different manner" taking into account the level of prominence and extent of the subsequent republication.[107] We acknowledge that any republication of a defamatory allegation can be damaging, but the person who is harmed can bring a defamation claim where justice requires. We accept that some increase in the level of litigation may arise while the courts establish the precise workings of a "single publication" approach, including the meaning of "substantially the same" and a "materially different" publication. But, on balance, the draft Bill represents a far fairer scheme for publishers, both online and in print.

59. We are, however, concerned that the single publication rule is too narrow as presently drafted. While it protects the individual who originally published the material once the one year period has expired, it does not protect anyone else who republishes the same material in a similar manner. For instance, an archive that publishes material written by someone else could be sued successfully, even though the original author could no longer be pursued for continuing to make the material available to readers. A publisher who republishes material previously published by a different person will similarly be exposed. 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.[108] 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. Otherwise the usefulness of the single publication rule would be undermined. It would also create a disincentive against making publications widely available in different mediums.

INNOCENT DISSEMINATION

60. As a final point in relation to the protection of publishers, we were made aware that what appears to be a change to the so called "innocent dissemination" defence, when it was put on a statutory footing by the Defamation Act 1996, has weakened the position of "secondary publishers". It means in effect that any secondary publisher such as a bookseller who is not the original author and has no editorial control over the published material becomes liable as soon as being made aware that some of the publication's content may be defamatory. Prior to 1996 the secondary publisher appears to have had a defence if they reasonably believed (for example, on the basis of reasoned assurances from the author or primary publisher), that the defamatory material was defensible.[109] The reform implemented by the 1996 Act has, in this respect, been unduly harsh on secondary publishers. 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.

Recommended changes to the draft Bill

61. This section summarises the changes we recommend are made to each clause of the draft Bill, with additional reasoning where the arguments are not made in earlier sections of this chapter.

CLAUSE 1: SUBSTANTIAL HARM

62. 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.

CLAUSE 2: RESPONSIBLE PUBLICATION ON MATTER OF PUBLIC INTEREST

63. 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.[110] The Bill must make it clear that the existing common law defence will be repealed.

64. 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. It is far better for this term to be interpreted flexibly by the courts, as at present, than risk a definition that restricts the defence by failing to cover all of the disparate issues which may engage the public interest.

65. 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 since it is not appropriate to expect the same level of pre-publication investigation from a local newspaper, non-governmental organisation or ordinary person as we should expect from a major national newspaper. It is entirely appropriate to treat "responsibility" as a flexible standard that considers resources alongside other important issues such as the seriousness, nature and timing of the publication;[111]

b) A reference to "the statement in context" should be added to clause 2(1)(c) to make it clear that the publication must be read as a whole rather than focusing primarily upon the words that are subject to complaint;

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". There is a danger that referring to urgency will make the defence narrower than is appropriate by focusing unduly on whether the publication could have been delayed to allow for additional investigation, rather than considering whether it was published at an appropriate time;

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. The purpose of this expression is to make it clear that opinion is fully protected by the public interest defence, which we support. However, this approach creates a risk that the courts will be drawn into an overly analytical examination of the publication line by line. In our view, it is sufficient for the Bill to refer to the "tone of the statement" at clause 2(1)(h). We note that the seriousness of the imputation (for example, whether it is pitched as suspicion or guilt) is already something that may be taken into account under clause 2(2)(b); and

e) Further, 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.

66. We acknowledge the criticisms that have been expressed about the breadth of the reportage[112] defence at clause 2(3) of the draft Bill.[113] In particular, it would appear to allow publishers to repeat almost any defamatory remark made by a third party in a context of a current controversy that relates to a matter of public interest. There are occasions, especially in political debate, when there is a public interest in neutrally reporting both sides of a dispute without having to form a responsible judgment as to who is right. However, we agree that a limit is required. Our preferred option is to permit publication only when the reporting of the dispute is in the public interest (and not merely when the dispute concerns a matter of public interest). We also believe that the neutral reporting of a dispute should form one of the factors for determining responsibility, rather than automatically being viewed as responsible. Therefore, 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."

CLAUSE 3: TRUTH

67. 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.

68. 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 defendant 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.

CLAUSE 4: HONEST OPINION

69. 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. The law's protection of the right to personal privacy[114] (which is another aspect of Article 8 of the ECHR) and confidentiality are now well established and can be used to prevent people from expressing opinions on matters that ought not to enter the public domain. In this respect, the public interest test no longer serves a useful purpose. It also creates the potential for confusion with the identically worded, but narrower, public interest test under the draft Bill's defence of responsible journalism in the public interest. Further, we note that it may be a breach of the right to free speech under Article 10 of the ECHR to require a person to prove the truth of a value judgment irrespective of whether it concerns a matter of public interest or not;[115]

b) At present, the Bill protects "bare opinions" by which the author makes a statement without any indication of the nature of the facts on which it is based. For instance, a bare opinion would include a statement that 'in my view Mr X is a disgrace as a surgeon'. Historically this type of allegation was treated as a statement of fact and was not therefore protected by the honest opinion defence. As the Supreme Court recently pointed out, this approach is artificial because it plainly is an expression of opinion. The reason for being cautious about offering legal protection to such a bare statement of opinion is clear. Readers are left without any way of assessing the real nature of the criticism, and the victim is seriously handicapped in defending him or herself in response. If the general subject matter of the opinion is known (for example, it may be the surgeon's safety record or merely the dress that he or she wears on ward rounds), it informs the reader who may also then be better able to judge its merit and helps the person who is attacked to better defend their reputation. A further benefit is that it allows the court to limit the scope of its factual inquiry which will save time and costs in line with our core principles. 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. We emphasise that the context will often be more than sufficient to make the general subject matter of the opinion entirely clear to the reader;

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. This is a significant change to the present common law. We see the attraction of the argument that people can only comment on facts they know. However, often those facts will not have been evident at the same time as the comment. Public interest issues can retain topicality for some time, making it more difficult to identify what facts were known when. People variously rely on skim reading, summaries by others, fleeting internet searches, and what they read and see in the media. There are also difficulties with the common situation where the media are reporting comments by others, whose knowledge of the background facts may be unknown, and where only the media are sued and the original commentator may not be prepared to assist. However, the removal of the knowledge test makes it doubly important that there is a requirement that the general nature of the facts underlying the comment is indicated in the publication. That requirement, and the honesty test, should provide sufficient protection. While there may be hard cases, we believe that this defence at the core of free speech will benefit from simplification. We also have in mind that generally defamatory opinions (which must be recognisable as such) are less destructive of reputation than defamatory allegations of fact;

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. This appears to be a problem which neither the Government's Bill nor Lord Lester's Bill satisfactorily addresses. A person may honestly express a defamatory opinion on the basis of a fact which, though once true, has by the time of publication wholly lost its validity for reasons which may be unknown to the commentator—for example on the basis of a conviction later overturned on appeal. It seems to us that in such cases, which we accept will arise very rarely, the defence should not be available. This may require delicate drafting, but we believe the point should be addressed. Some consideration would have to be given to whether (and when) the invalidating facts became publicly available prior to the date of publication;[116]

e) The Bill should require the statement to be recognisable as an opinion, in line with Lord Lester's Bill. We consider it is essential that the defence only arises where the ordinary reader or viewer will recognise the statement as an opinion. This is especially important in relation to inferences of fact which the commentator may draw from other facts, which may be more damaging than mere value judgments.[117] However they often form a crucial part of the debate on public interest issues. We believe that such opinions should qualify for the defence, provided they are clearly recognisable as only representing the author's opinion; 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. The Bill is unclear as it stands and is an invitation to further litigation as to what it means. More fundamentally it would, read literally, protect comments expressed on wholly false statements contained in private communications where publisher and recipient have a common law defence of qualified privilege based on a reciprocal duty and interest. We do not believe the MoJ intended this result.

CLAUSE 5: PRIVILEGE

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

CLAUSE 6: SINGLE PUBLICATION RULE

71. 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.

CLAUSE 7: ACTION AGAINST A PERSON NOT DOMICILED IN THE UK OR A MEMBER STATE ETC

72. 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.

CLAUSE 8: TRIAL TO BE WITHOUT A JURY UNLESS THE COURT ORDERS OTHERWISE

73. 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.

24 See paras 61-73 for our detailed recommendations. Back

25 Q 473 [Clarke] Back

26 Q 525 [Scotland]; Q 585 [Tomlinson]; Q 586 [Browne] Back

27 Senior Courts Act 1981, section 69; County Courts Act 1984, section 66. Back

28 Ministry of Justice, Report of the Libel Working Group Report, March 2010, p 85; there have been no trials by jury in defamation cases for more than 18 months: see Q 30 [Lester]. Back

29 The right to apply for jury trial exists only in claims relating to fraud (although it is not in practice ordered), false imprisonment and malicious falsehood. Back

30 Cm 8020, p 37 Back

31 Liberty, Vol II, p233-236. Back

32 Cm 8020 p 37; Q 611 [Mr Justice Tugendhat]. The same arguments that are heard initially by the judge are often replayed again in front of the jury, which results in increases to costs and the length of proceedings. There are also potential additional costs if there is a hung jury and a retrial. Back

33 Rt Hon Lord Justice Jackson, Review of Civil Litigation Costs; Final Report [hereafter, "the Jackson Report"], Chapter 32, para 6.3. The Law Reform Committee estimates that jury trials last "perhaps twice as long" as non-jury trials (Vol III, p 153). Back

34 As the law stands, public interest is an issue for the judge, not the jury, in relation to both honest opinion and qualified privilege. Back

35 Law Reform Committee, Vol III, p 153; Q74-75; Professor Mullis and Dr Scott, Vol II, p 140. Back