The Defamation Bill was introduced in the House of Lords on 8 October 2012 having already completed its passage through the Commons. In this Report we consider the significant human rights issues raised by the Bill and wider legal issues prompted by defamation reform.
Clause 4Responsible publication in the public interest
The Bill as drafted seeks to codify the common law Reynolds defence for responsible publication on a matter of public interest. In doing so, it seeks to put on a statutory footing the checklist of relevant factors expounded in that case. We find these factors to be too narrow. To retain them will fail to rebalance the law of defamation in favour of the right to freedom of speech in Article 10 ECHR, and instead will perpetuate the difficulties already manifest in practice. We urge the Government to abandon the checklist, in favour of a clear, unambiguous defence of public interest. We are also concerned that, by omitting to mention the relevance of editorial judgment, as emphasised in Flood v Times Newspapers, the Bill would not encompass the full degree of protection offered by the common law.
We considered two alternative formulations for a public interest defence clause. The Libel Reform Group proposed a defence to the existing clause where the libel in question concerns a matter of public interest and correction is given promptly. We do not support such a defence: prompt correction will not always be the most appropriate remedy and to deny a claimant access to damages may cause injustice.
We are persuaded, though, by the replacement clause proposed by Lord Lester of Herne Hill at Second Reading in the House of Lords. That clause sought to institute a test of a "reasonable belief that the publication was in the public interest". This would provide a clear test, without limiting consideration with a checklist of factors. We take the view that such a proposal is compliant with the ECHR, and indeed think that judges will use Article 8 to shape their understanding of 'public interest'. It will also clearly encompass a view of what steps, if any, a publisher took to verify an alleged defamatory statement. We therefore recommend that the Government amend the Bill to replace clause 4 in accordance with that formulation.
Clause 5Website operators
The Bill provides for a defence for website operators in a defamation action, provided they did not post the statement complained of. To make use of the defence, a website operator is compelled to remove defamatory material following a notice of complaint if they have no means of contacting the author. We think that this could create a chilling effect, whereby statements which are in fact lawful, by virtue of an available defence, are removed from the public domain on the basis that a claimant has asserted they are defamatory. We recommend that the threshold be elevated to "unlawful", a change which would also ensure consistency with the E-Commerce Directive and the Pre-action Protocol for defamation.
The Bill provides that regulations will set out a process for website operators to put complainants in contact with the author of allegedly defamatory material. It is proposed that these regulations will be agreed in Parliament by use of the negative resolution procedure. We think that, as the regulations will effectively govern how website operators will be expected to respond to defamatory notices, their agreement requires full Parliamentary debate, and that therefore they should be subject to the affirmative resolution procedure instead.
Universities and colleges are often website operators, and therefore would be able to use the Clause 5 defence only if they comply with a notice of complaint. They are also under a statutory duty under section 43(2) of the Education (No. 2) Act 1986 to "take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers." An institution publishing allegedly defamatory material may therefore be in a position of conflictof attempting to adhere to the duty to protect freedom of speech in respect of allegedly defamatory material while also being under an obligation to remove it. We recommend that the Government should bring forward statutory guidance as to which duty should take precedence in that scenario, in order to assist educational institutions. We also recommend that regulations made pursuant to Clause 5 protect the anonymity of whistleblowers.
Clause 8Single publication rule
The Bill would introduce a single publications rule, which prevents an action being brought in relation to publication of the same material by the same publisher after a one year limitation period from the date of the first publication of that material to the public or to a section of the public. This would replace the longstanding principle that each publication gives rise to a separate cause of action.
We ask the Government to reassure us that Clause 8, as drafted, will provide adequate protection for subsequent publication of defamatory material. If it cannot we would encourage the Government to explore an alternative defence of non-culpable republication.
The Bill does not address the issue of use of defamation proceedings by corporate claimants. We take the view that businesses ought only to succeed where they can prove actual damage. The Bill should be amended so as to provide that non-natural persons are required to establish substantial financial loss in any claim for defamation.
WIDER ISSUES RAISED BY DEFAMATION REFORM
Costs, funding and access to justice
The Legal Aid, Sentencing and Punishment of Offenders Act instituted changes which limited the recoverability of success fees and after the event insurance (ATE) in defamation cases. We are concerned that these changes may inhibit access to justice for those individuals who are middle-income, but not eligible for legal aid. The Government have made a commitment to ask the Civil Justice Council to consider the case for possible options for reform. We welcome this ongoing consideration, and note that a solution is needed to ensure that all persons, regardless of financial means, can access justice in defamation proceedings.