Defamation Bill [HL]

House of Commons

Session 2010 - 11
Internet Publications
Other Bills before Parliament

Defamation Bill [HL]

Defamation Bill [HL]
1

A
Bill
To
Amend the law of defamation; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Defences
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Responsible publication on matters of public interest
(1)
Any defendant in an action for defamation has a defence if the defendant
shows that—
(a)
the words or matters complained of were published for the purposes of,
5
or otherwise in connection with, the discussion of a matter of public
interest; and
(b)
the defendant acted responsibly in making the publication.
(2)
Subsection (1) applies irrespective of whether the publication contains
statements of fact or inferences or opinions.
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(3)
The court when deciding for the purposes of subsection (1)(b) whether the
defendant has acted responsibly must have regard to all the circumstances of
the case.
(4)
Those circumstances may include (among other things)—
(a)
the nature of the publication and its context;
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(b)
the nature and seriousness of anything alleged about the claimant;
(c)
what information the defendant had before publication;
(d)
what steps (if any) were taken by the defendant to verify what was
published;
(e)
if appropriate, whether the defendant gave the claimant an opportunity
20
to comment before publication;
(f)
whether there were factors supporting urgent publication;
(g)
the extent of the defendant’s compliance with any relevant code of
conduct or other relevant guidelines; or
(h)
whether subsection (5) applies.
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HL Bill 3
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Defamation Bill [HL]
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(5)
Where a publication reports accurately and impartially on a pre-existing
matter (for example, that there is a dispute between two parties), a defendant
may be regarded as acting responsibly to the extent that the court is satisfied
that it is in the public interest for the existence of that matter, and anything
reported in connection with it, to be the subject of a report or series of reports.
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(6)
In determining for the purposes of subsection (5) whether publication is in the
public interest, the court may disregard any question as to the truth of anything
reported in connection with a pre-existing matter.
2
Honest opinion
In an action for defamation, the defence known before the commencement of
10
this section as the defence of fair comment is, after commencement, to be
known as the defence of honest opinion.
3
Establishing a defence of honest opinion
(1)
A defendant has a defence of honest opinion in an action for defamation if the
defendant shows that Conditions 1 to 4 are satisfied (subject to subsections (7)
15
and (8)).
(2)
Condition 1 is that the words or matters complained of relate to a matter of
public interest.
(3)
Condition 2 is that, in the circumstances in which the words or matters are
published, an ordinary person would reasonably consider those words or
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matters to be an opinion.
(4)
Condition 3 is that, at the time of publication, there existed—
(a)
one or more facts;
(b)
any material that falls within section 1 (responsible publication on
matters of public interest);
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(c)
any material that falls within section 6, 7 or 8 (statutory privilege); or
(d)
any material that is otherwise protected by privilege.
(5)
Condition 4 is that an honest person could form the opinion on the basis of the
facts or material shown by the defendant in satisfying Condition 3.
(6)
In relation to the facts or material relied on by the defendant as providing a
30
basis for the opinion, no account is to be taken of—
(a)
anything that the defendant does not show, provided that the
defendant shows that Condition 4 is satisfied on the basis of what is
shown;
(b)
whether the defendant first learned of the facts or material before or
35
after publication; or
(c)
whether the facts or material were or were not included (by reference
or otherwise) in the publication.
(7)
There is no defence of honest opinion if the claimant shows that the defendant
did not in fact hold the opinion.
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(8)
Where the defendant was not the author (“A”) of the words or matters
complained of, there is no defence of honest opinion if the claimant shows that-
(a)
the defendant knew that A did not in fact hold the opinion; or

Defamation Bill [HL]
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(b)
the defendant had reason to believe that A did not in fact hold the
opinion and published without determining whether or not A did hold
it.
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Truth
In an action for defamation, the defence known before the commencement of
5
this section as the defence of justification is, after commencement, to be known
as the defence of truth.
5
Establishing a defence of truth
(1)
A defendant has a defence of truth in an action for defamation if the words or
matters complained of are substantially true.
10
(2)
For these purposes, the defendant may show either that—
(a)
the meaning (or meanings) alleged by the claimant are substantially
true; or
(b)
the words or matters complained of have a less serious meaning (or
meanings) and each such meaning is substantially true.
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(3)
A defence of justification does not fail only because a particular meaning
alleged by the claimant is not shown as being substantially true, if that
meaning would not materially injure the claimant’s reputation having regard
to the truth of what the defendant has shown to be substantially true.
(4)
Where—
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(a)
the words or matters complained of make two or more distinct
allegations; and
(b)
the truth of every allegation is not shown;

a defence of justification does not fail only because of paragraph (b) if anything
not shown to be true does not materially injure the claimant’s reputation
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having regard to the truth of the remaining allegations.
Statutory privilege
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Reports of court proceedings protected by absolute privilege
(1)
A fair and accurate report of proceedings in public before a court to which this
section applies, if published contemporaneously with the proceedings, is
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absolutely privileged.
(2)
A report of proceedings which by an order of the court, or as a consequence of
any statutory provision, is required to be postponed is to be treated as
published contemporaneously if it is published as soon as practicable after
publication is permitted.
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(3)
This section applies to—
(a)
any court in the United Kingdom;
(b)
the European Court of Justice or any court attached to that court;
(c)
the European Court of Human Rights;
(d)
any international criminal tribunal established by the Security Council
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of the United Nations or by an international agreement to which the
United Kingdom is a party;

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(e)
any court established under the law of a country or territory outside the
United Kingdom;
(f)
the Inter-American Court of Human Rights;
(g)
the African Court of Human and People’s Rights;
(h)
the International Court of Justice; and
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(i)
any other judicial or arbitral tribunal deciding matters in dispute
between States.
In paragraph (a) “court” includes any tribunal or body exercising the judicial
power of the State.
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Reports etc of certain Parliamentary matters protected by absolute privilege
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(1)
The following are absolutely privileged—
(a)
a fair and accurate report of proceedings in Parliament;
(b)
a fair and accurate report of anything published by or on the authority
of Parliament; and
(c)
a fair and accurate copy of, extract from or summary of anything
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published by or on the authority of Parliament.
(2)
The court must stay any proceedings where the defendant shows that—
(a)
the proceedings relate to the publication of anything that falls within
paragraph (a), (b) or (c) of subsection (1); or
(b)
the proceedings seek to prevent or postpone the making of any such
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publication.
(3)
This section also has effect in relation to the Welsh Assembly and the Northern
Ireland Assembly (and any reference to Parliament is to be read as a reference
to the Assembly in question).
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Other reports etc protected by qualified privilege
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(1)
The publication of any report or other statement mentioned in Schedule 1 to
this Act is privileged unless the publication is shown to be made with malice,
subject as follows.
(2)
In an action for defamation in respect of the publication of a report or other
statement mentioned in Part 2 of Schedule 1, there is no defence under this
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section if the claimant shows that the defendant—
(a)
was requested by the claimant to publish in a suitable manner a
reasonable letter or statement by way of explanation or contradiction;
and
(b)
refused or neglected to do so without sufficient cause.
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(3)
For this purpose “in a suitable manner” means in the same manner as the
publication complained of or in a manner that is adequate and reasonable in
the circumstances.
(4)
This section does not apply to the publication to the public, or a section of the
public, of matter which is not of public concern and the publication of which is
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not for the public benefit.
(5)
Nothing in this section is to be construed—
(a)
as protecting the publication of matter the publication of which is
prohibited by law; or

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(b)
as limiting or abridging any privilege subsisting apart from this section.
Publication
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Responsibility for publication
(1)
Any defendant in an action for defamation has a defence if the defendant
shows that the defendant’s only involvement in the publication of the words
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or matters complained of—
(a)
is as a facilitator; or
(b)
is as a broadcaster of a live programme in circumstances in which it was
not reasonably foreseeable that those words or matters would be
published.
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(2)
Any defendant in an action for defamation, apart from a primary publisher,
has a defence unless the claimant shows that—
(a)
the notice requirements specified in subsection (3) have been complied
with;
(b)
the notice period specified in subsection (4) has expired; and
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(c)
the words or matters complained of have not been removed from the
publication.
(3)
The notice requirements are that the substance of the claimant’s complaint
must be communicated in writing to the defendant, specifying—
(a)
the words or matters complained of and the person (or persons) to
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whom they relate;
(b)
the publication that contains those words or matters;
(c)
why the claimant considers the words or matters to be defamatory;
(d)
the details of any matters relied on in the publication which the
claimant considers to be untrue; and
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(e)
why the claimant considers the words or matters to be harmful in the
circumstances in which they were published.
(4)
The notice period is—
(a)
the period of 14 days starting with the date of receipt by the defendant
of all the information required by subsection (3); or
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(b)
such other period as the court may specify (whether of its own motion
or on an application by any party to the action).
(5)
Employees or agents of a primary publisher, or other person who publishes the
words or matters complained of, are in the same position as their principal to
the extent that they are responsible for the content of what is published or the
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decision to publish it.
(6)
In this section—
“facilitator” means a person who is concerned only with the transmission
or storage of the content of the publication and has no other influence
or control over it; and
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“primary publisher” means an author, an editor or a person who exercises
effective control of an author or editor.
(7)
For the purposes of the definition of “primary publisher” in subsection (6)—
“author” means—

Defamation Bill [HL]
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(a)
a person who originates the words or matters complained of;
but
(b)
does not include a person who does not intend that they be
published; and
“editor”, in relation to a publication, means a person with editorial or
5
equivalent responsibility for the content of the publication or the
decision to publish it.
(8)
This section does not apply to any cause of action which arose before the
section came into force.
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Multiple publications
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(1)
In any case to which subsection (2) applies—
(a)
the first occasion on which the publication is made available to the
public generally (or to any section of the public) is to be regarded for all
purposes as the date of publication of each subsequent publication; and
(b)
in an action for defamation based on any publication to which this
15
section applies, the cause of action is to be treated as having accrued on
that date.
(2)
This subsection applies to any publication (such as a book, newspaper,
periodical or material in an archive) which—
(a)
is published by the same person on multiple occasions; and
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(b)
on each occasion, has the same, or substantially the same, content.
(3)
Subsection (2) does not apply where a subsequent publication is made in a
materially different manner, but this is without prejudice to that publication
itself constituting a first publication for the purposes of subsection (1).
Cause of action
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Action for defamation brought by body corporate
A body corporate which seeks to pursue an action for defamation must show
that the publication of the words or matters complained of has caused, or is
likely to cause, substantial financial loss to the body corporate.
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Striking out where claimant suffers no substantial harm
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(1)
The court must strike out an action for defamation unless the claimant shows
that—
(a)
the publication of the words or matters complained of has caused
substantial harm to the claimant’s reputation; or
(b)
it is likely that such harm will be caused to the claimant’s reputation by
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the publication.
(2)
Subsection (1) does not apply if, in exceptional circumstances, the court is
satisfied that it would be in the interests of justice not to strike out the action.
(3)
In determining whether a claimant’s reputation is or may be substantially
harmed, the court must have regard to all the circumstances of the case.
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(4)
An order under subsection (1) may be made by the court of its own motion or
on an application by any party to the action.

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(5)
Subsection (1) does not limit any power to strike out proceedings which is
exercisable apart from this section.
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Harmful event in cases of publication outside the jurisdiction
(1)
This section applies in an action for defamation where the court is satisfied that
the words or matters complained of have also been published outside the
5
jurisdiction (including publication outside the jurisdiction of any words or
matters that differ only in ways not affecting their substance).
(2)
No harmful event is to be regarded as having occurred in relation to the
claimant unless the publication in the jurisdiction can reasonably be regarded
as having caused substantial harm to the claimant’s reputation having regard
10
to the extent of publication elsewhere.
Trial by jury
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Reversal of presumption of trial by a jury in defamation proceedings
In section 69(1)(b) of the Senior Courts Act 1981 (trial by jury) omit the words
“libel, slander”.
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Determining an application for trial by a jury
(1)
If the court is satisfied that it is in the interests of justice to do so, it may order
trial by jury of such matter or matters arising in an action for defamation as are
specified in the order.
(2)
An order under subsection (1) may be made on an application by any party to
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the action and the court determining the application must have regard to all the
circumstances of the case.
(3)
Those circumstances may include (among other things)—
(a)
whether there is a public interest in the subject matter of the action or
anything arising in connection with it;
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(b)
the identity of any of the parties to the action;
(c)
any office or other position held by any party to the action;
(d)
whether it is in the interests of justice that the verdict of a jury or a
reasoned judgment be obtained on any matter arising in the action;
(e)
the extent to which early resolution of any matter (for example, as to the
30
meaning of the words complained of) is likely to facilitate settlement of
the action, improve active case management or assist in achieving a just
and equitable outcome; and
(f)
whether the trial is likely to require the prolonged examination of
documents or accounts or any scientific or local investigation which
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cannot conveniently be made with a jury.
(4)
An application must be made in accordance with such procedure as may be
prescribed by rules of court.