Tilting at Windmills: the Defamation Act 2013

LEGISLATION

Tilting at Windmills: the Defamation Act 2013

Alastair Mullis and Andrew Scott*

In April 2013, the Defamation Act was passed, the culmination of a four-year political campaign.The legislation is intended to ameliorate the ‘chilling effect’ of libel law on scientists, onlinecommentators, NGOs, and others. This paper considers the main changes wrought: reform of themain common law defences, changes relevant to scientific discourse and online speech, and revisionsthat will impact on process. It identifies areas where there will be problems of interpretation forcourts, and suggests that the Act will fail to provide clarity for publishers keen to assess the legalityof their actions. The paper also contends that more attention should have been paid to remedies (inparticular, the desirability of discursive remedies such as the right of reply). The question is posedwhether the Act addresses the core problem with libel law: the juridification and over-complicationof public sphere disputes, and the attendant cost of embroilment in legal proceedings.

In April 2013, the Defamation Act (the Act) received the Royal Assent as theculmination of a four-year political campaign and a multi-stage pre-legislativeprocess. The legislation is intended to ameliorate the ‘chilling effect’ of libel law;to address the dysfunctionality that ‘imposes unnecessary and disproportionaterestrictions on free speech’, and that ‘does not reflect the interests of a moderndemocratic society’.1 Specifically, it is intended to allow scientists, online com-mentators, non-governmental organisations, and others to introduce facts, criti-cism, comment and condemnation into public discussions without undue fearthat their contributions will result in legal repercussions. Some campaigners haveextolled the reforms, suggesting that they ‘will change the landscape of freespeech in Britain’.2 Others have been more circumspect,3 while the Ministercharged with implementing the law – Lord McNally – has emphasised that itshould be understood as only part of a wider array of measures oriented towardsimproving the functioning of the public sphere.4 He has indicated that his‘intention . . . has always been to end up with legislation that works’.5 Theoverarching aim of this paper is to consider the success of that project.

*School of Law, University of Leeds and Department of Law, London School of Economics andPolitical Science respectively.

1 Libel Reform Campaign (2009) Free Speech is Not For Sale at http://www.libelreform.org/our-report (last visited 4 October 2013).

2 D. Ponsford, ‘Defamation Bill passed’ Press Gazette 25 April 2013, citing Simon Singh.3 J. Glanville, ‘We’ve got a defamation bill but it’s how we act that matters’ The Guardian 29 April

2013; Libel Reform Campaign, ‘Initial summary assessment of the Defamation Bill’ 24 April 2013at http://www.libelreform.org/news/548-defamation-bill-agreed-by-parliament (last visited 11October 2013).

4 P. Reidy, ‘Libel Act to commence before end of year’ Index on Censorship 13 June 2013.5 HL Deb vol 739 col 933 9 October 2012.

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After offering a brief overview of the contents of the Act, the paper considersthe main changes wrought by the new law. This involves discussion of thereform of the main common law defences, and the impact of the new legislationon two types of speech that were of particular concern to campaigners (scientificdiscourse and online speech), and the likely ramifications of the Act for the libelprocess. The discussion identifies elements of the legislation that will likely poseproblems of interpretation for courts in applying the law. It also highlightsconceptual flaws in some aspects of the Act. It suggests that the new law willalter, but not very much ameliorate, the costly and burdensome process throughwhich libel actions proceed, and will fail to provide the clarity that would enablepublishers better to assess the legality of their actions when choosing to publish.

The paper is also critical of the Act on account of what it has not even attemptedto achieve. On one level, this involves the complaint that more attention has notbeen paid to the matter of remedies, and in particular to the opportunity openedby the advent of new technology fully to embrace the discursive remedies ofapology, correction, and right of reply. At a deeper level, the question is posedwhether the lawyers who have been to the fore in the development of the Act havefully understood the problem; whether they have failed adequately to thinkoutside the legal box. Speaking during the parliamentary debate, the eminentscientist Lord May expressed the concern that ‘what is being described . . . [is] noteasily going to be translated into anything that is not almost as expensive as whatis currently being used as a weapon . . . [when most disputes] could have beensettled by a judge in half an hour’.6 The core problem with libel law has been thejuridification and over-complication of public sphere disputes, and the attendantcost of embroilment in legal proceedings. This problem has been barely touched,to the benefit of no-one bar tyrants and lawyers.

AN OVERVIEW OF THE ACT

The Act comprises seventeen sections, consisting of a mixture of codifying,revising and general provisions. Section 1 introduces a ‘serious harm’ thresholdto the bringing of a claim. Sections 2 to 7 concern defences; the main commonlaw defences are abolished and replaced. Section 2 restates the justificationdefence under the label of ‘truth’, section 3 recasts the fair comment defence as‘honest opinion’, and section 4 replaces Reynolds privilege with a new defence of‘publication on a matter of public interest’. Section 4(3) restates the reportagevariant of the defence. Section 5 provides a new defence for the operators ofwebsites, and sections 6 and 7 deal with aspects of privilege.

The latter part of the statute concerns publication, jurisdiction, the trialprocess and remedies. In a revision of particular importance to online publishers,section 8 introduces a ‘single publication rule’ that will see the limitation periodfor claims run from the date of ‘first publication’. Section 9 is intended to addressthe phenomenon of ‘libel tourism’, and compels the court to refuse jurisdictionunless it is satisfied that England and Wales is ‘clearly the most appropriate place’

6 HL Deb vol 741 col GC429 17 December 2012.

The Defamation Act 2013

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for the action to be brought. Section 10 provides that an action cannot bebrought against persons who are involved in, but not primarily responsible for,publication unless ‘it is not reasonably practicable for an action to be broughtagainst the author, editor or publisher’. Section 11 signals the end of thepresumption of trial by jury in defamation actions; jury trials will now occur onlywhere ordered by the court. Sections 12 and 13 address the question of remedies,providing the court with power to order publication of summaries of judgmentsand to compel the ‘take-down’ of impugned publications. The final substantiveprovision, section 14, concerns aspects of the law of slander.

DEFENCES

The new Act abolishes the three main common law defences, replacing each ofthem with a relabelled statutory variant. While the shift in nomenclature to thatof ‘truth’ is the most significant element in the section 2 restatement of thecommon law defence of justification,7 honest comment and Reynolds privilegehave both been revised in more substantial fashion. The three main defencesrest on different justifications: truth, the public interest, and recognisability ascomment. The last of these is least understood. It also offers the most powerfulprotection of free speech. The Act has intertwined the defences, particularly withregard to honest comment and Reynolds. This has been done on grounds ofpragmatism. It is unjustified, however, and may result in under-protection ofcertain forms of legitimate speech.

Publication on a matter of public interest

Until late in the legislative process, the section 4 defence of ‘publication on amatter of public interest’ was essentially unremarkable. It did little more thanreiterate Reynolds privilege in statutory form. For that reason, it was criticised bycampaigners who proposed a defence based on a good faith or absence-of-malicestandard equivalent to that in US law.8 The defence ultimately passed by

7 The new provision, in large part, emulates the existing law set out in Chase v News GroupNewspapers Ltd [2002] EWCA Civ 1772 though the word ‘imputation’ is used rather than the morecommonly used ‘meaning’. ‘Imputation’ is arguably more apt than ‘meaning’, as it encompasses notjust natural and ordinary meanings but also meanings that can only be conveyed by inference. It isdoubtful whether the existing common law ‘repetition rule’ is abolished by section 2(1) as this is arule about ‘meaning’ – where it applies ‘it dictates the meaning to be given the words’ – rather thanpart of the common law defence of justification. Subsections (2)–(4) reproduce section 5 of theDefamation Act 1952 though it provides that the defence shall not fail if the words not proved truedo not seriously harm the defendant’s reputation rather than as under the current law whichprovides that a defence of justification shall not fail by reason only that the truth of every charge isnot proved if the words not proved to be true do not materially injure the plaintiff’s reputation. Thechange in language was said to be necessary to ensure consistency with section 1 of the Act. Thenew defence does not extend to cover situations where there is a single defamatory imputation thatmay have several different shades of meaning as had been proposed in clause 5(3) of Lord Lester’sPrivate Member’s Bill.

8 See, for example, the Libel Reform Campaign, Briefing for second reading debate at http://tiny.cc/inktyw (last visited 4 October 2013).

Alastair Mullis and Andrew Scott

© 2014 The Authors. The Modern Law Review © 2014 The Modern Law Review Limited.89(2014) 77(1) MLR 87–109

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Parliament, however, is different. The requirement that a defendant demonstratethat publication was ‘responsible’ has been jettisoned. Instead, a publisher mustin future show that he or she ‘reasonably believed that publishing the statementcomplained of was in the public interest’.9 As under Reynolds privilege, it mustalso be demonstrated that ‘the statement complained of was, or formed part of,a statement on a matter of public interest’.10 This new form of defence wasinitially mooted by Lord Lester during the Second Reading debate in the Houseof Lords.11 It was then considered by the Joint Committee on Human Rights inits review of the proposed legislation.12

It remains an open question whether the shift in focus from the responsibilityof journalism to the reasonableness of belief will entail any substantive change.There are two tenable interpretations. Arguably, the ‘reasonable belief’ testrequires only a belief that is based on rational grounds. This would entail that thedefence would fail only in the unusual circumstance where the belief was provenfalse, capricious or irrational. The practical ramifications of this view would beworrying:

a person can reasonably believe that the publication of a statement in the publicinterest without taking steps to verify its truth . . . if, for example, a journalist is toldby a source that that he believes to be reliable that a leading politician is corrupt, thejournalist could reasonably believe that it was in the public interest to publish suchan allegation without further investigation into its truth. It could even be argued thatit was reasonable for a journalist to believe that publication is in the public interestwhere he has no positive belief in its truth but simply believes that because of itsseriousness it is an allegation which should be published.13

Interpreted in this way, the concept of ‘reasonableness’ would differ little fromthat of good faith or honesty, and would clearly be too generous to publishers.

The alternative view is that the assessment of whether a journalist’s belief wasreasonable would involve essentially the same analysis as that which is appliedcurrently under Reynolds privilege. The question would be how the belief wasreasonable rather than how the journalism was responsible, but a well-resourcedjournalist could not reach a reasonable belief that publication was in the publicinterest without first having done what an ethical journalist should do to stand upa story.

Of these two tenable interpretations, it is clear that the second approachrepresents the intention of Parliament when passing the Act. During the Com-mittee stage debate, Lord McNally affirmed that ‘in determining whether in allthe circumstances the test is met, we would expect the courts to look at many

9 s 4(1)(b).10 s 4(1)(a). Under s 4(4), when determining whether it was reasonable for the defendant to believe

that publishing the statement complained of was in the public interest, the court is required to makesuch allowance for editorial judgement as it considers appropriate.

11 HL Deb vol 739 col 953–954 9 October 2012. Its authorship is attributed to Sir Brian Neill.12 Joint Committee on Human Rights, Seventh Report: Legislative Scrutiny – Defamation Bill [2012–13]

HL 84; HC 810.13 H. Tomlinson, ‘The Defamation Bill and a “Strong Public Interest Defence”’ Inforrm 22 November

2013.



of the same sorts of considerations as they have done before’, and that ‘the courtswill need to look at the conduct of the publisher in deciding that question’.14

Similarly, the Explanatory Notes to the Act explain that the new defence ‘is basedon . . . and . . . is intended essentially to codify the common law defence . . .[while] the current case law would constitute a helpful (albeit not binding) guideto interpreting how the new statutory defence should be applied’.15

Even absent recourse to the rule in Pepper v Hart to assist with the properinterpretation of the defence, the second variant would almost certainly be theinterpretation adopted by the courts. Any statutory public interest defence wouldhave to be interpreted by judges in light of the need to balance the Article 8 rightto reputation against the Article 10 right to freedom of expression.16 In suchcircumstances, as elucidated by Lord Steyn in Re S, a court would have to engagein a two-way balancing exercise in light of an intense scrutiny of all thecircumstances of the case.17 Only the second interpretation of ‘reasonableness’allows for the balancing exercise to be undertaken. Precisely what it requires –the size of the hurdle to publication posed by Article 8 – would depend on allrelevant factors. This would necessarily include the position and status of thepublisher, what could reasonably be expected of them to stand the story up, andthe seriousness of the libel if the story proved incorrect.

Ultimately, the new defence can be expressed succinctly in the same words asLord Brown deployed in Flood v Times Newspapers Ltd when depicting theReynolds privilege:

could whoever published the defamation, given whatever they knew (and did notknow) and whatever they had done (and had not done) to guard so far as possibleagainst the publication of untrue defamatory material, properly have considered thepublication in question to be in the public interest?18

Honest opinion

Section 3 of the Act renames and recasts the common law defence of honestcomment.19 Like its predecessor, the defence is intended to promote vigorousfree speech, so that ‘a critic need not be mealy-mouthed in denouncing what hedisagrees with . . . [but rather is] entitled to dip his pen in gall for the purposesof legitimate criticism’.20 Statements of fact and opinion are treated differentlybecause defamatory opinions – whether inferences of fact or value judgments –can be recognised by readers as viewpoints with which they can choose to agreeor disagree (perhaps, if they are so motivated, by reference back to the under-

14 HL Deb vol 741 col GC534 19 December 2012. This was also the view expressed by the JointCommittee on Human Rights – see n 12 above, para 28.

15 Explanatory Notes to the Defamation Act 2013, paras 29 and 35.16 A. Mullis and A. Scott, ‘The Swing of the Pendulum: Reputation, Expression and the Recentering

of English Libel Law’ (2012) 63 Northern Ireland Legal Quarterly 27–58.17 Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47 at [17].18 Flood v Times Newspapers [2012] UKSC 11 at [113].19 The common law defence is abolished by s 3(8).20 Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777 at [20], per Lord Nicholls.



pinning facts). Publishers are exempted from liability on different groundscompared to bare statements of defamatory fact. Where facts only are stated,truth is asserted; readers are not invited to demur. Where defamatory opinion isconcerned, provided the inferential nature of the assertion is clear and the factson which the opinion is based made available, the possibility of reasonablereaders being misled by the viewpoint expressed does not arise.

The perception motivating the reform was that fair comment suffers from‘complex case law limiting [its] practical value’,21 and this notwithstanding thefact that the Supreme Court had only recently offered a thoroughgoing review.22

The intention behind the revisions was ‘to strip out unnecessary technicaldifficulties and make the renamed defence . . . user-friendly . . . [to] updateand simplify . . . clarifying what the defendant must prove . . . and stating theelements of the defence in clear terms’.23 The importance of the rationaleunderpinning the honest opinion defence is such, perhaps especially in thecontext of online and scientific discussions, that the circumstances in which it isavailable should indeed be as clear as possible.24

To benefit from the new statutory defence, a defendant’s publication mustsatisfy three conditions. The first is that the statement complained of must havebeen a statement of opinion.25 As at common law, this question is determined byreference to how it would be interpreted from the perspective of the ordinaryreasonable reader. The second condition requires that the statement complainedof ‘indicated, whether in general or specific terms, the basis of the opinion’.26

The third condition is set out in section 3(4): ‘that an honest person could haveheld the opinion on the basis of (a) any fact which existed at the time thestatement complained of was published’, or ‘(b) anything asserted to be a fact ina privileged statement published before the statement complained of’. Comparedwith the common law defence,27 there are three notable innovations in thestatutory variant.

Jettisoning of the Public Interest RequirementThe first point of difference is that the new statutory defence makes no referenceto the need for the comment to be on a matter of public interest. Some

21 Explanatory notes to the Lester Bill, para 62. At least two issues were thought to give rise to particulardifficulty. First, the requirement that the commentator should have known the facts on which hebased the comments. Secondly, the difficulty of distinguishing between fact and comment; JointCommittee on the Defamation Bill, First Report: Draft Defamation Bill [2010–12] HL Paper 203 /HC930, para 69.

22 Spiller v Joseph [2010] UKSC 53.23 Explanatory notes to the Lester Bill, para 68.24 On the potential importance of the defence in the online context, see Spiller v Joseph n 22 above

at [99], per Lord Phillips MR and [131], per Lord Walker, and in the context of scientific discussions,see Joint Committee on the Defamation Bill, n 21 above, para 47.

25 s 3(2). The label is a misnomer in that an opinion can comprise an ‘inference of fact’ fromunderpinning facts as much as a value judgment based on facts.

26 s 3(3).27 For a statement of the common law position, see Spiller v Joseph n 22 above at [3] and [104]–[105],

per Lord Phillips MR.



commentators have voiced concern regarding this shift.28 In contrast, the JointCommittee on the Draft Bill considered the public interest dimension ‘anunnecessary complication’.29 In light of the general movement of the commonlaw defence over time, this change can be seen as merely the end-point ofan existing direction of travel. Fundamentally, the basis for excluding liabilityin respect of opinions is their recognisability as individual viewpoints only.Whether those viewpoints relate to matters of public interest is neither here northere.

Reliance on Erroneous Facts Privileged Under Section 4A second innovation of the honest opinion defence concerns the bases foropinion prescribed in section 3(4)(b). The definition of a ‘privileged statement’on which an opinion can be based includes statements that would have a section4 defence. The language of section 3(4)(b) – the use of ‘before’- would appear,however, to preclude the defence of a comment on privileged facts that waspublished contemporaneously with the privileged statement. This might occur,for example, when a press release is issued alongside a larger document, or wherea journalist or blogger comments on facts that he or she has published in the samearticle. These are not infrequent events. As a matter of principle, it is difficult toexplain why such opinions should not be protected by the Act. Why the lawshould treat contemporaneous publication of facts mixed with opinion anydifferently from a press release published one minute after a report, or a com-ment piece published moments after a news item or investigative findings isunfathomable.

Two possible explanations as to why section 3(4)(b) was written in thismanner can be suggested. The first is that it is a quirk of the legislative history ofthe Act. Notably, there was no insistence that the privileged statement bepublished before the statement complained of in the Private Member’s Billintroduced by Lord Lester.30 That Bill would have included facts defensibleunder a public interest defence as a legitimising basis for comment. When theGovernment published its Draft Bill, however, the range of privileged statementsthat could be relevant for the purposes of the honest comment defence was morelimited. Statements privileged under the equivalent of section 4 were not to beincluded in the section 3 defence, and the Draft Bill adopted the ‘before’terminology. This was attributed to a desire not to over-complicate the rela-tionship between the two defences.31 Other forms of privileged statementsare unlikely often to include commentary or critique alongside the privilegedcontent. Hence, the language of the provision merely reflected the then-expected actuality. The Government then resiled from this position, and

28 G. P. Phillipson, ‘The “Global Pariah”, the Defamation Bill and the Human Rights Act’ (2012) 63Northern Ireland Legal Quarterly 149–186; ‘Free comment on private lives’ Inforrm 31 March 2012.This critique related specifically to an earlier version of the proposed statutory defence that alsoexcluded any explicit requirement that the publication refer to the underpinning facts.

29 Joint Committee on the Defamation Bill, n 21 above, para 69a.30 clause 3(4)(b).31 Ministry of Justice, Draft Defamation Bill: Consultation Paper CP3/11 Cm 8020 (March 2011) para

47.



included facts asserted in statements privileged by section 4. Thus, it seems thatthe requirement that the privileged statement be published ‘before’ the statementcomplained of may have been carried through by way of oversight from theGovernment’s Draft Bill. It should have been excised, however, when it wasdecided to re-extend the bases on which opinions might be expressed to includestatements defensible under section 4.

Of course, a second possible explanation is that the authors of the Bill didcontemplate this theme, but considered the apparent lacuna unimportant in lightof the extension of the section 4 defence to cover opinions. If that was the case,then – for reasons developed further below – it was the wrong decision.Prospectively, while the problem could be addressed by the courts interpreting‘before’ to mean ‘before, or contemporaneously with’, it may be that a statutoryamendment would be preferable.

Shift to an Almost Wholly Objective Defence32

The most fundamental change made to the existing common law ‘honestcomment’ defence is contained in section 3(4) of the 2013 Act. At common law,the defendant must have known the facts on which the opinion was based, atleast in general terms, at the time the comment was made33 in order to be ableto rely on the defence. However, under the section 3(4) condition, it is enoughthat an honest person could have held the opinion on the basis of ‘any fact thatexisted at the time the statement complained of was published’. This provisionwas introduced, notwithstanding Lord Phillip’s comments in the Supreme Courtin Spiller v Joseph to the effect that its introduction ‘would radically alter thenature of the defence’.34

It is true that the Explanatory Notes give the impression that nothing radicalwas intended and state that the aim of the legislation is ‘to simplify the law byproviding a clear and straightforward test’, while ‘retain[ing] the broad principlesof the current common law defence’.35 For this to be the result, however, thephrase ‘any fact’ would have to be interpreted to mean ‘any of the facts on whichthe claimant based his or her opinion’. This does not seem to be a tenableinterpretation of section 3(4). Instead, this third condition – contrary to the statedintention broadly to reflect the common law – seems likely to have profound andfar-reaching ramifications. It seems that it will, for example, enable a defendantwho has published an opinion on the basis of wholly false facts to succeed in thedefence at trial if he or she is able to discover some other fact of which he or shewas previously ignorant (relating perhaps to a wholly different and distant phaseof the claimant’s life) on which an honest person could have based the comment.That is, the defendant will be able to rely on facts that were wholly unconnectedto his or her own understanding of the imputation. The only effective limitationwill be that imposed by section 3(3): the publication must, notwithstanding the

32 s 3(5) provides that ‘the defence is defeated if the claimant shows that the defendant did not holdthe opinion’.

33 Lowe v Associated Newspapers Ltd [2006] EWHC 320 (QB); [2007] QB 580 at [74].34 n 22 above at [110].35 n 15 above, para 15.



defendant’s own ignorance of them, have indicated to readers the ‘newly found’facts on which the purported opinion was based. If this reading of interplaybetween the section 3(3) and 3(4) conditions is correct, then the only other routeopen to the claimant may be to prove, somehow, that the defendant did not havethe newly found facts in mind when publishing the opinion, and hence that heor she did not in fact hold the opinion. Even this option – potentially availableunder section 3(5) – would be fraught. The fact of the matter would be that thedefendant did hold the opinion, albeit on an erroneous basis.

The intermingling of honest opinion and the public interest defence

A problematic and unnecessary lack of clarity has also been introduced into theoperation of defences by section 4(5). This explains that ‘for the avoidance ofdoubt’, the section 4 defence can be used irrespective of whether the impugnedstatement is a statement of fact or an expression of opinion. In this regard, section4 is novel. While the Court of Appeal in British Chiropractic Association v Singhregarded it as an open question whether Reynolds applied also to opinion,36 bothLord Nicholls and Lord Hobhouse had stated in Reynolds itself that statements ofopinion were to be protected, if at all, only by fair comment.37 The positiontaken in Reynolds is preferable. Section 4(5) adopts the Court of Appeal’s viewand in so doing elides the important distinction between statements of fact andopinions.

Consider, for example, a scenario in which A publishes an article about B inwhich he asserts a number of defamatory and untrue facts on which he makescomment. Under the common law, honest comment could not have succeededin such a scenario (because the facts were wrong), nor could a Reynolds defencebecause the privilege did not protect opinions. By making the public interestdefence applicable to opinion as well as fact, the effect of section 4(5) wouldseem to be that a defamatory opinion that no honest minded person could haveheld based on the stated (inaccurate) facts may nevertheless be protected pro-vided that the other elements of section 4 are satisfied. This surely goes too far.

The ‘Tone’ of a PublicationA key complaint regarding the statutory version of the Reynolds defence that wasincluded in the Bill until late in the day was that it included reference to the‘tone’ of the publication as one factor relevant to responsibility. Arguably, thisfactor jarred with judicial assertions of the importance of editorial freedom.38

Certainly, it was understood to do so by some eminent supporters of the Bill,and a primary purpose of the shift to the new reasonable belief defence insection 4 was to ensure that editorial freedom should be sufficiently taken into

36 [2010] EWCA Civ 350 at [31].37 [2001] 2 AC 127, 201 and 193–195, per Lord Nicholls, and 237–238, per Lord Hobhouse.38 See, for example, Jameel v Wall Street Journal Europe [2006] UKHL 44 at [51], per Lord Hoffmann

and [108], per Lord Hope; Flood v Times Newspapers n 18 above at [137], per Lord Mance and at[199], per Lord Dyson.



consideration.39 It is possible that the jettisoning of the reference to ‘tone’ in therevised defence took on such importance for the supporters of the Bill due to theintention to allow section 4 to apply to both statements of facts and opinions.Opinions expressed in vituperative fashion might otherwise fall foul of the testunder section 4, even though they might be acceptable under section 3. If thisis the explanation, then the concern was a feature of an underlying mistake; theextension of section 4 to cover the expression of opinion is unjustified.40

There are two dimensions to the concept of ‘tone’. On one hand, tone mightrefer to the degree to which the piece mixed fact with (vituperative) comment.On the other hand, tone might refer to the degree of certainty with which anallegation is levelled. The original proposal for a statutory defence had specificallycited the issue of whether the publication ‘draws appropriate distinctionsbetween suspicions, opinions, allegations and proven facts’. These additionalwords spoke immediately to the issues of determination of meaning and justifi-cation (Chase levels of meaning),41 and were clearly intended to emphasise thatcircumspection in the levelling of allegations made is a marker of responsibility.This must remain a factor in the determination of whether the requisite beliefunder section 4 is ‘reasonable’. Publishers can be emotive, haranguing and cruelwhile publishing content that is identifiable as opinion, but they should not bepermitted to justify serious allegations of fact without evidence by reference to‘editorial freedom’.

The Predicament of Social CommentatorsThere is also a deeper problem. The statutory arrangement – section 3(4)(b) –makes sense from the perspective of the publisher who mixes fact and comment(section 4), or who himself follows-up on publication of (what turn out to befalse) facts with further, separate commentary (section 3). It does not make sensefrom the perspective of the publisher who relies on facts published by someoneelse. This is, of course, the common position of the social media commentator.That publisher is in effect asked to prove the section 4 public interest defence byproxy. This is an impossible feat. That such difficulties would be faced wasrecognised by the Government during the development of the Act.42

A preferable option would have been for section 4 to have been reserved forthe defence of statements of fact on matters of public interest, for the definitionof ‘privileged statement’ in section 3(6) to have excluded reference to section 4,and for a new section 3(4)(c) to have been introduced to read, ‘any fact that he

39 HL Deb vol 741 col GC533 19 December 2012, per Lord McNally.40 See further the section on ‘honest opinion’ above. This is not to say that the same publication might

not include distinct statements of which some may be defended as a statement of fact under section4, while others are defended as expressions of opinion under section 3.

41 Chase v News Group Newspapers Ltd n 7 above. A defamatory statement may involve a number oflevels of meaning. In Chase, the Court of Appeal said that two levels of imputation existed belowlevel 1 (‘guilt’) both of which are defamatory: that there are reasonable grounds to suspect that theclaimant is involved (level 2) or that there are grounds to investigate what the claimant has done(level 3).

42 Ministry of Justice, Government’s Response to the Report of the Joint Committee on the Draft DefamationBill Cm 8295 (2012) para 41.



or she reasonably believed to be true at the time the statement complained of waspublished’. That is, the defence should be available when the factual basis foropinion expressed was either true, privileged, or reasonably believed to be true.A statutory amendment should now be passed quickly to effect this change.43 Itwould remove any need to apply clause 4 ‘universally’ to publications that mixedstatements of fact and expression of opinion. Whether something was bestanalysed as a statement of fact (with section 4 applying) or of opinion (withsection 3 applying) would become immaterial: either way the applicable testswould be the reasonableness and honesty of the belief. A further advantage of thisapproach would be that there would be no importation of the concept of thepublic interest back into section 3. As discussed above, if the aim of the defenceis to allow the expression of opinion to proceed, it is not clear why an elementof it based upon reasonable belief in the truth of underpinning facts should beavailable only in a public interest context.

This is a matter of no small importance. It is clear that what can be expectedof people commenting as they read the Times or watching the Channel 4 Newsshould be very much less than what is expected of those writing for mainstreammedia. It should be perfectly acceptable for a person to tweet on the basis ofsomething watched on Newsnight or read on the Guardian website. It is certainlyreasonable that this should occur given the legitimate expectation that main-stream media publishers – at least those possessing a reputation for qualityjournalism – will have exercised a degree of professionalism and legal compliancein developing their output. Indeed, having people spread the word, in particularon matters of public importance, is precisely why journalism happens and whyit is needed. Moreover, the introduction of such protection would not mean thatthe subject of the libel has no avenue to seek redress. In the modern mediaenvironment, all such blogposts, tweets, links, likes and so on are the reasonablyforeseeable result of the initial publication. As such, all secondary publication andthe harm it causes is attributable in law to the tort caused by the originalpublication. An individual’s Article 8 right to reputation would be adequatelyprotected.44

That the introduction of such a defence was an option was recognised by theGovernment during the development of the Act. Alongside its Draft Bill, itconsulted on the advisability of allowing an honest opinion defence if thehonest-minded person could have held the opinion on the basis of materialwhich satisfied the test of responsible publication in the public interest (what isnow section 4 of the Act).45 Notwithstanding majority support for this devel-opment, the Government decided not to proceed. It contended that the offer of

43 This would also entail the need to offset the ‘repetition rule’ in respect of any restatement of thefalse facts on which the opinion is based, although in many cases of social commentary the s 1threshold would be unlikely to be satisfied by a claimant.

44 It might be argued that the same logic applies to section 4, such that the social commentator whorestates erroneous facts (and maybe comments thereon) should be able to defend their publicationusing the public interest defence. At first glance, such an approach seems illegitimate. It wouldconflate the two limbs of the section 4 defence; obviate the repetition rule, and leave section 3effectively redundant in public interest cases.

45 Draft Defamation Bill: Consultation Paper CP3/11 n 31 above, para 46.



amends procedure would normally be available in such circumstances, and thatsuch a provision could complicate the law and undermine the need for a factualbasis to the opinion.46 The result of this decision is that the utility of the honestcomment defence to social media commentators is significantly less than mightotherwise have been the case. A claimant would still be incentivised to sue by theexpectation of compensation under the offer of amends process, whereas a fullyeffective honest opinion defence would likely deter the launching of action.

ACADEMIC AND SCIENTIFIC DISCOURSE

Improving the protection afforded to scientific speech has been one of theprimary goals of the libel reforms. Alongside the more general revision ofdefences, two provisions aim specifically to achieve this. First, section 6 providesqualified privilege to peer reviewed statements published in scientific or aca-demic journals.47 The provision accords privilege where two conditions are met,unless it is shown to have been made with malice.48 First, the statement mustrelate to ‘a scientific or academic matter’.49 Secondly, before publication thestatement must have been subject to ‘an independent review of the statement’sscientific or academic merit’, carried out by the editor of the journal, and one ormore persons with expertise in the scientific or academic matter concerned.50

Fair and accurate copies, extracts from or summaries of such statements are alsoprotected,51 as are any assessments made by the reviewers provided that suchassessments are published in the same journal and were written in the course ofthe review.52

Separately, section 7(9) extends qualified privilege to fair and accurate reportsof proceedings of a scientific or academic conference, and to copies, extracts andsummaries published by such conferences. Such reports will be privileged, unlessshown to have been made with malice, subject to the requirement to complywith a request by the claimant to publish in a suitable manner a reasonable letteror statement by way of explanation or contradiction.53

That scientific and academic speech is important cannot be disputed, and itsbowdlerisation due to the ‘libel chill’ is a pressing social problem.54 That said,three criticisms can be offered of the Act in this respect: that of principle, that ofdesign, and that of scope. As a matter of principle, it must be questioned whetherspecial protection even for this limited category of academic speech was justified.It is not obvious why it should be considered worthy of greater protectionthan is accorded to other forms of public interest speech. Unless a compellingargument can be made that it is somehow more ‘valuable’ than other forms of

46 Ministry of Justice, n 42 above, para 36.47 s 6(1).48 s 6(6).49 s 6(2).50 s 6(3).51 s 6(5).52 s 6(4).53 Defamation Act 1996, s 15(2).54 Joint Committee on the Defamation Bill, n 21 above, para 47.



speech, then it should be treated in the same way. No such argument is made bythe leading theoreticians on academic freedom.55

Even if a strong public interest in the dissemination of certain kinds ofacademic speech is thought sufficient to justify enhanced protection, it must bequestioned whether the manner of protection provided for in section 6 is themost appropriate. There is an argument for a rebuttable presumption to the effectthat an article that has gone through peer review is responsibly published for thepurposes of section 4; peer review might be seen as a proxy for a quality andaccuracy check. This does not explain, however, why proof of malice onlyshould defeat the privilege.

A final criticism of section 6 is that its scope is a relatively narrow one. Section6 would not have assisted any of the defendants in the recent scientific causescélèbre.56 The privilege applies only to peer reviewed publications that meetthe stringent conditions set out in subsections (2) and (3). It is not a generalprotection for academic speech. When academics speak in the media or com-municate their research through other less formal means than a peer-reviewedjournal, they will have to rely on the general defences available. The privilegecannot attach to a statement in a book, even if peer reviewed. It would not likelyattach to a statement that impugned the bona fides or competence of the claim-ant.57 Further difficulties are likely to arise with regard to the interpretation ofthe language of the provision. The Act does not define ‘scientific or academicmatter’ or ‘expertise’. In the first respect, the intention to cover not just scientificresearch but also research in the social sciences, humanities and arts seems clear.It is unclear, however, whether any quality threshold is implied: would it cover,for example, ‘research’ that has been conclusively rejected by the mainstreamscientific community? In the second respect, it is not clear what might count as‘expertise’: would a person who has written on the law of tort but not defama-tion, for example, be possessed of the necessary expertise to review a paper onhonest opinion? Litigation testing these issues seems likely.

ONLINE PUBLICATION

A primary concern underpinning the lobby for the Defamation Act was theperceived need better to defend free speech online. Two central problems were

55 E. Barendt, Academic Freedom and the Law, a comparative study (Oxford: Hart Publishing, 2010);M. W. Finkin and R. C. Post, For the Common Good: Principles of American Academic Freedom(New Haven, Ct: Yale University Press, 2009).

56 Thus, in Bowker v RSPB [2011] EWHC 737 (QB), the defendant was sued in respect of emailscritical of a paper written by the claimant. In BCA v Singh [2010] EWCA Civ 350 CA; [2011] 1WLR 133 and Rath v Guardian Newspapers [2008] EWHC 398 (QB) the defendants were sued inrespect of newspaper articles. In El Naschie v MacMillan Publishers Ltd [2012] EWHC 1809 (QB),the statements complained of were published in an academic journal but in the editorial section, andthe case turned on the integrity of editorial self-publication and peer review, not a scientific oracademic matter. Finally, in GE v Thomsen at http://www.propublica.org/documents/item/ge-v-thomsen-a-british-libel-case (last visited 14 October 2013) the claim was brought in respectof comments made at an academic conference and in NMT v Wilmshurst at http://www.pressgazette.co.uk/node/47627 (last visited 4 October 2013), the defendant was sued, interalia, in respect of statements he made in a radio programme.

57 See, for instance, El Naschie v MacMillan Publishers ibid at [10], per Sharp J.



http://www.propublica.org/documents/item/ge-v-thomsen-a-british-libel-case

http://www.propublica.org/documents/item/ge-v-thomsen-a-british-libel-case

http://www.pressgazette.co.uk/node/47627

http://www.pressgazette.co.uk/node/47627

identified: the propensity of online intermediaries – ISPs or content hosts – totake down content if faced with legal threats, and the perpetual liability imposedon internet publishers by dint of the Duke of Brunswick multiple publication rule.The Act includes measures to address both of these issues. It is not clear,however, whether Parliament has understood the complexity of the issues orprovided adequate solutions.

Online intermediaries

A particular problem that the Act was intended to address is the risk that onlineintermediaries may prefer to take down content posted by other parties who usetheir services rather than face potential liability themselves as secondary publish-ers. Two provisions in the Act are of particular value to such intermediaries.First, section 5 provides a new defence for website operators in respect ofstatements posted on their sites by third parties. The defence is available unlessthe claimant shows that: (a) it was not possible for him to identify the person whoposted the statement; (b) he gave the operator a notice of complaint in relationto the statement, and (c) the operator failed to respond to the notice of complaintin accordance with any provision contained in regulations.

The second provision, which is also of importance to other secondary pub-lishers such as retailers and printers, is contained in section 10. This provides thata court does not have jurisdiction to hear and determine an action for defamationbrought against a secondary publisher unless it is not reasonably practicable for anaction to be brought against the author, editor or publisher. Taken together,these provisions significantly extend the existing protection available to websiteoperators in respect of posts by identifiable posters. Where posters are notidentifiable, the effect of the Act is to encourage website operators voluntarily todisclose their identity and contact details.

Where a post is uploaded to a website by an identifiable person, the existinglaw provides that the host will have a defence only in the absence of knowledgeon their part of the defamatory statement.58 The new defence in section 5 appliesin respect of posts by identifiable individuals even where the website operator hasknowledge of the post, provided that he is not responsible for the statement.Consequently, the website operator can safely leave up such a post, unless anduntil a court orders its removal under section 13 of the Act.

Sensibly, given the fast changing nature of internet platforms, ‘website opera-tor’ is not defined in the Act. The range of platforms in existence make it almostinevitable, however, that the meaning of the words will be litigated. Presumably,retail websites such as Amazon and Audible and other business sites that allowvisitors to post comments, will fall within the provision. More difficult perhapsare social media platforms – such as Twitter, Facebook and Blogger – on whichit is not necessarily clear who the operator is: the owner of the business, theperson who has created the account, or both. By section 5(2), the operator has

58 Defamation Act 1996, s 1; Electronic Commerce (EC Directive) Regulations 2002 SI 2013/2002,regs 17–19.



a defence where it shows that it did not post the statement. Where the websiteoperator acts as a moderator by, for example, adding or deleting posts, section5(12) makes clear that the defence is not defeated by reason only of that fact.Where the moderation involves editing or even deletion of part of the post,however, knowledge may stray into participation, and the website operator maybecome liable as a primary publisher.

The notice of complaint given by the claimant should (a) include the complai-nant’s name; (b) set out the statement concerned explaining why it is defamatoryof the complainant; (c) specify where on the website the statement was posted,and (d) such other information as may be specified in regulations.59 Critically, thenotice need not engage substantively with the question whether the statementis in fact libellous. This approach can be criticised on the basis that a websiteoperator should not be required to reveal identity details or take down thestatement complained of on the basis of ‘half the story’. Nevertheless, it has themerit of placing the responsibility on the website operator to investigate if itwishes to leave the statement up. Knowledge should import some responsibility;it is not unreasonable to require a website operator to take steps to ascertain thetruth of an allegation that it is knowingly publishing. Somewhat surprisingly, theAct is silent as to the action required of a website operator in response to a noticeof complaint. Section 5(5) provides only that regulations may specify the actionrequired; this may include, in particular, ‘action relating to the identity or contactdetails of the person who posted the statement and action relating to its removal’.

As regards anonymous or pseudonymous posts, section 10 makes it significantlymore difficult to proceed against online intermediaries. Precisely what issues acourt will consider in determining whether it was reasonably practicable to bringa claim against the primary publisher is not however clear. For example, would thefact that the primary author and publisher were in the United States so that anyjudgment obtained against them in this jurisdiction would, as a consequence of theSecuring the Protection of our Enduring and Established Heritage (SPEECH)Act, be unenforceable in the US, mean that it was not reasonably practicable tobring a claim against them? It cannot surely be required of a claimant that he pursuea claim that even if successful would be of no practical value to him, andconsequently it is arguable that a court should have jurisdiction to hear a claimagainst the secondary publisher in such a case. A similar argument can be made ifthe primary publisher is insolvent. A second set of concerns might arise in the casewhere the primary publisher has published under a cloak of anonymity. In such acase, a claimant may only be able to obtain sufficient information to commence aclaim by using the Norwich Pharmacal jurisdiction. Could it be argued that if theclaimant fails to utilise the Norwich Pharmacal jurisdiction, then section 10 wouldprevent a claim being brought against any secondary publisher? Where thesecondary publisher is a website operator, the effect of acceding to such anargument would be to render the section 5 notice procedures redundant and thatis presumably not what was intended by Parliament.

59 These requirements may be developed further by way of regulations – s 5(7). No such regulationshave yet been enacted but draft regulations have been published: The Draft Defamation (Operatorsof Websites) Regulations 2013.



The effect of sections 5 and 10 is significantly to improve the position ofwebsite operators that publish third party material. Whether or not the thirdparty publisher is identifiable, knowledge of the defamatory nature of thematerial does not in itself defeat the defence, and – in respect of unidentifiedposts – provided the website operator acts promptly to notify the claimant ofthe third party’s identity or takes the statement down, it has little to fear by wayof liability. While there is clearly merit in these provisions, it is notable thathighly defamatory and indefensible postings will often remain visible pendingdetermination of any claim brought against the author. In this respect, it isregrettable that Parliament has not imposed on website operators an obligationto append a notice of complaint alongside statements that they choose to leaveup. Such an obligation had been proposed by the Joint Committee,60 andwould have had the merit of alerting any readers to the fact that the statementswere contested. It was rejected by the Government following discussions withinternet companies on the purported basis that significant practical and tech-nical difficulties would leave it unworkable in practice.61 This is to make theperfect the enemy of the good.

The single publication rule

Section 8 replaces the existing multiple publication rule under which every newpublication of a defamatory imputation gives rise to a separate claim. For thefuture, a new ‘single publication rule’ is intended to prevent a claim beingbrought in respect of a publication of the same material by the same publisherfollowing the expiry of a one year limitation period that runs from the date offirst publication to the public.62 The clause does not apply where the manner ofthe subsequent publication is materially different from the manner of the firstpublication.63 In assessing this issue, the matters to which the court may haveregard include the level of prominence that a statement is given, and the extentof the subsequent publication.64

Section 8 is a response to the oft-heard rhetorical trope that the ‘current lawhas not caught up with technology’,65 and that the mid-nineteenth centuryorigins of the rule mean that its retention marks out antediluvian tendenciesamong the judiciary.66 The existing law can certainly generate injustice andsocial detriment by creating potentially perpetual liability. This is especiallyproblematic in the context of online publication. The concern was that at theextreme, online publishers may cavil at the perpetual risk of suit, and so renegealtogether on maintaining internet archives of past publication. In fact, the

60 Joint Committee on the Defamation Bill, n 21 above, para 104.61 Ministry of Justice, n 42 above, para 78–80.62 s 8(1)–(2).63 s 6(4).64 s 6(5).65 A. Lester, ‘Free Speech: the gloves are off’ Sunday Times 30 May 2010.66 See, for example, D. Pannick, ‘We no longer live in a gentlemen’s club, so let’s reform libel law’

The Times 15 July 2010; J. Kampfner, ‘Media law: the quiet revolution gains momentum’ Guardian31 May 2010; S. Singh, ‘Reform of our libel law is long overdue’ Daily Telegraph 25 May 2010.



legal risk was always more likely to affect the integrity of archives that weremaintained by prompting publishers to pull past articles against which com-plaint was made.

Criticism of the pre-existing rule was always wilfully one-eyed. It decried theperpetual risk of suit being brought, but singularly failed to acknowledge theconcomitant potential for ongoing harm to be caused precisely by that continu-ing publication. When Lord Lester mused on the fact that whereas ‘the Duke ofBrunswick sent his valet to obtain a 17-year-old publication of the WeeklyDispatch . . . now search engines do the same thing thousands of times per day’,67

he could see only the ramifications of the extant rules for freedom of expression.The new rule can be criticised correspondingly as wrong in concept because itelides the harms caused by ongoing publication. Reputational harm is caused notby the act of publication (in its everyday rather than legal sense), but rather whenthe reading occurs. Irrespective of when first publication occurs, each readinghas the potential to harm the reputation of the person defamed. The problemscaused by the perpetual availability of damaging publications online are anincreasingly pressing concern.68

Neither will the new rule ‘work’ in practice. It will not provide the ‘safeharbour’ that it is intended to create, and may become pathological from thepublisher’s perspective. The problem arises because the ‘right to reputation’ hasbeen recognised as part of the Article 8 right to respect for private life.69 Theproposed rule in section 8 is not absolute, but admits of circumstances in whichthe limitation period may be lifted.70 This will be done whenever a judge deemsit ‘equitable’ in light of ‘all the circumstances of the case’, including the reasonsfor the delay on the part of the claimant. Judges must interpret legislation as faras it is possible to do so to cohere with Convention rights. Faced with a claimantwho argues credibly that a reading of a defamatory online publication that tookplace yesterday, and which might be emulated tomorrow, has had adverseconsequences for his or her Article 8 right to reputation, no judge will be ableto refuse to lift the limitation period (at least for the years after first publicationwhen no especial practical difficulty would be caused to the defendant). More-over, as courts have stated repeatedly, the expression interest in ongoing publi-cation is comparatively weak.71 Arguably, the judge will find him- or herself inthis position on every occasion that the harm to reputation might be describedas ‘serious’ (as per section 1). This will mean that the supposed safe harbour willprove illusory.

Relative to the current position under the multiple publication rule, thisoutcome would be pathological for the defendant publisher. Under the multiplepublication rule, a defendant would be liable only for harm attributable to

67 A. Lester, ‘Libel must be rebalanced in the scales of justice’ The Times 24 May 2010.68 D. J. Solove, The Future of Reputation: Gossip, Rumor and Privacy on the Internet (New Haven, Ct:

Yale University Press, 2007).69 See Mullis and Scott, n 16 above.70 Limitation Act 1980, s 8(6)(a) and s 32A.71 Loutchansky v Times Newspapers Ltd [2001] EWCA Civ 1805 at [74]. See also Times Newspapers (Nos

1 and 2) v UK (2009) App nos 3002/03 and 23676/03; [2009] EMLR 14 at [45].



publication that had occurred within the preceding year.72 When the section 8limitation is lifted by a judge under section 32A, the defendant will be liable forall harms caused beginning from the date of first publication.73 Obviously, this islikely often to be very much more significant than what has occurred in theprevious year only.

Reform of the law in this respect was necessary to prevent Loutchansky-stylelitigation from exercising a chilling effect on the maintaining of online archives.In preference to section 8, however, there were other options. As a first option,section 8 might simply have been excised as poorly-conceived law, and the judgeleft to assess whether proceedings should be permitted in respect of recentpublications in accordance with the section 1 test. If no significant publicationhad occurred recently, then no proceedings would be permitted. If recentreading of the material had caused serious Article 8 harm, however, this optionwould leave the publisher liable. The position under this approach would inpractice be little different to that which will transpire under section 8, except thatthe risk of pathological consequences would have been eradicated. Alternatively,Parliament might have retained the multiple publication rule, but also intro-duced a new defence of ‘non-culpable republication’.74

PROCESS

The problem of burdensome process and high associated costs has been key tothe chilling effect of libel law. The Defamation Act makes two changes that areintended to ameliorate this concern: the introduction of a threshold of serious-ness test in section 1, and the ending of the presumption of trial by jury in section11.

Serious harm threshold

One of the main criticisms of the pre-Act law was that relatively trivial claimswere sometimes allowed to progress to trial. Section 1(1) now provides that ‘astatement is not defamatory unless its publication has caused or is likely to causeserious harm to the reputation of the claimant’. Where the claimant is a ‘bodythat trades for profit’, harm to reputation is not ‘serious harm’ unless it has causedor is likely to cause serious financial harm.75 The Explanatory Notes to the Actexplain that section 1 is intended to ‘build on the consideration given by thecourts in a series of cases to the question of what is sufficient to establish that astatement is defamatory’, and suggest that ‘the section raises the bar for bringinga claim’.76

72 The extent of which publication the claimant would be required to demonstrate – Al Amoudi vBrisard [2006] EWHC 1062.

73 Subject to the standard limitation period for tort of six years – Limitation Act 1980, s 2.74 A. Mullis and A. Scott, ‘Worth the Candle? The Government’s Draft Defamation Bill’ (2011) 3

Journal of Media Law 1, 14–15. See also, n. 71 above.75 s 1(2).76 Explanatory Notes to the Defamation Act 2013, para 11.



Clearly, trivial claims should be discouraged, but it must be doubted whethersection 1 will make much difference in terms of the content of the law. InThornton v Telegraph Media Group Ltd, Tugendhat J set out a ‘threshold ofseriousness’ test regarding the question of whether an imputation was defama-tory.77 This is a specific version of the broader Jameel abuse of process jurisdictionthat has been considered very often by judges dealing with libel claims.78 Thisjurisdiction provides for the court to strike out claims where no ‘real andsubstantial tort’ has occurred. At present, the law looks to the tendency of thewords but section 1 only requires that harm is likely and it is difficult to thinkof cases where an imputation has the tendency to adversely affect a person’sreputation to a substantial degree that are not also likely to cause serious harm toreputation. It may be that certain categories of case – for example where theimputation is as to something which is not voluntary, but rather a misfortunefor which no direct moral responsibility can be placed upon the claimant andimputations which ridicule the claimant – will be less likely to succeed thancurrently. But even claims falling within these categories have not been notablysuccessful. Almost all cases in recent years where the claimant has been ridiculedhave failed79 and it is hard to think that a Youssoupoff 80 type case would survivea Jameel strike out application. Beyond these categories, the courts have shownlittle sympathy for claimants with already damaged reputations or where littlewould be gained by allowing the case to proceed– will be more likely to fail thancurrently, though it should be noted that the courts have not been sympatheticto such claims prior to the Act. In Williams v MGN Ltd, for instance, a claimbased on an allegation that the claimant was a ‘henchman’ of a ruthless crime bosswas struck out as the claimant – who was already in prison having beenconvicted of murder – had no reputation to protect.81 In Hamaizia v Commis-sioner of Police for the Metropolis, Tugendhat J held that a claim would be struckout (unless amended to show wider publication) as the claimants had alreadyachieved considerable vindication through the defendant’s acceptance of theinaccuracy of the allegation.82 Cases where the imputation amounted to vulgar

77 [2010] EWHC 1414 (QB). See also Daniels v British Broadcasting Corporation [2010] EWHC 3057(QB) at [43]–[51].

78 [2005] EWCA Civ 75. The Court of Appeal explained that the jurisdiction arises, in light of theHuman Rights Act 1998 and the Civil Procedure Rules, because ‘an abuse of process is of concernnot merely to the parties but to the court. It is no longer the role of the court simply to providea level playing-field and to referee whatever game the parties choose to play upon it. The court isconcerned to ensure that judicial and court resources are appropriately and proportionately used inaccordance with the requirements of justice . . . Keeping a proper balance between the Article 10right of freedom of expression and the protection of individual reputation . . . require[s] the courtto bring to a stop as an abuse of process defamation proceedings that are not serving the legitimatepurpose of protecting the claimant’s reputation’ (at [54]–[55]).

79 See, eg, Dell’Olio v Associated Newspapers Ltd [2011] EWHC 3472 (QB); Ecclestone v Telegraph MediaGroup [2009] EWHC 2779 (QB); John v Guardian News and Media Group [2008] EWHC 3066(QB).

80 Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581.81 [2009] EWHC 3150.82 [2013] EWHC 848. The case also involved suggestions that the claimants – also convicted criminals

– had no reputation to protect. See also King v Grundon [2012] EWHC 2719; Kaschke v Osler [2010]EWHC 1075; Kaschke v Gray [2010] EWHC 1907.



abuse have also generally been struck out.83 Cases where the damage wastransient, or publication was to a very limited number of people have also oftenfailed.84 In short, it is likely that section 1 will make only the most marginal ofdifferences to the existing law.

One clear effect of section 1 will be to place a more onerous burden on theclaimant at the preliminary stage. The question of whether a publication hasthe tendency adversely to affect a person’s reputation can be determined byexamining the statement on its own. In contrast, whether a publication hascaused, or is likely to cause, serious harm (or serious financial harm) is likelyto require a careful investigation of the facts of the case. In particular, the courtmust assess the inherent gravity of the allegation, the nature and status of thepublisher and publishee, the claimant’s existing reputation and financial posi-tion, and whether similar allegations have been published before. Claimantswill be forced to offer up evidence at an early stage of how the harm theyhave suffered is serious. This may increase the likelihood that unmeritoriouscases will not be brought. For other cases, it is likely to cause a measure offront-loading of effort.

End of the jury trial presumption

A significant change for the future of the libel court is given effect by section11. This provides that for the future any defamation case will be tried by judgealone, unless the court in its discretion orders it to be tried with a jury.85 Insome respects, this change reflects the reality that most libel trials have in recenttimes been heard by a judge only on the application of the parties on the basisthat they require prolonged examination of documents. The shifting of thepresumption, however, will likely have a quite profound impact on the man-agement of cases.

It can be expected that applications for the early determination of the actualmeaning of the words complained of will become commonplace. In turn, thiswill allow counsel to dispense with the need to prepare alternative arguments toaccommodate the fact that a jury may select one meaning over another only atthe end-point of the trial. Costs should be significantly reduced in consequence,while the determination of meaning may see a significant proportion of casessettle early as the parties appreciate that grounds for fighting on have been lost.All that said, even to get to the point at which a judge determines meaning willyet be sufficiently costly to preclude the option of going to law for manyclaimants and defendants. In addition, it might be expected that such a shift will

83 Smith v ADVFN [2008] EWHC 1797; McGrath v Dawkins [2012] EWHC B3 (QB).84 See, for instance, Williams v MGN Ltd [2013] EWHC 848; Tamiz v Google [2013] EWCA Civ 68;

Wallis v Meredith [2011] EWHC 75; Hays Plc v Hartley [2010] EWHC 1068; Noorani v Calver[2009] EWHC 561. Although, contrast, Clynes v O’Connor [2011] EWHC 1201 (oral publicationof undoubtedly vulgar and highly damaging allegations to small group of people who probably didnot believe them led to award of £1500 damages); Sanders v Percy [2009] EWHC 1870; Bezant vRausing [2007] EWHC 1118.

85 s 11 amends the Senior Courts Act, s 69(1); the power for the court to order trial by jury is providedby the Senior Courts Act, s 69(3).



focus attention on the artificiality and perhaps the unfairness of the singlemeaning rule that requires judges to select one meaning only from among theshades of meaning and different meanings that are available on a natural reading.All told, the preliminary skirmishes in libel actions can be expected often tobecome decisive, as questions of seriousness of harm, meaning, fact or opinionfall to be determined earlier than has been common.

REMEDIES

Sections 12 and 13 of the Act address the question of remedies, and provide thecourt with general powers, respectively, to order publication of a summary of thejudgment and to compel the ‘take-down’ of publications found by the court tobe defamatory. These measures join the limited means – such as those under theoffer of amends procedure in sections 2–4, the summary disposal procedure insections 8 and 9, and statutory privilege under section 15 of the Defamation Act1996 – by which English law already requires that additional informationregarding a dispute to be published. While welcome in themselves, these pro-visions signal a missed opportunity for the law in general.

Some proposals to improve the discursive quality of the law were activelyrejected. Parliament failed to mandate the appending of notices to highlight thatthe veracity of even highly defamatory internet articles and postings had beencontested, even though proposals on these lines were considered with regard towhat became sections 5 and 8. In addition, the original proposal for the newvariant public interest defence in section 4 rested upon a discursive gateway.When introduced at Second Reading, the proposal provided for the exclusion ofthe defence if the claimant could show that a request for the publication of acorrection was unreasonably refused or granted subject to unreasonable condi-tions.86 This feature of the proposal addressed the anomaly that the Reynoldsprivilege did not extend the obligation of responsibility to post-publicationbehaviour; that a wrongly libelled reputation was left besmirched at least until theconclusion of the court process and even thereafter should the defendant ‘win’on Reynolds. Requiring this of publishers would have allowed claimants astructured opportunity to vindicate reputational rights. It would have overcomethe frequently felt lack of access to a suitable platform for response. That elementof the proposal disappeared without mention, however, by the time the proposalwas considered at the Committee stage.

Parliament has failed to appreciate that the resolution of disputes over repu-tation could be done differently. Libel law can be constructed so as to form partof the ‘discursive constitution’.87 Mandated discursive remedies – such as cor-rections, retractions, and rights of reply – could serve to vindicate reputation, topromote freedom of expression, and to secure the provision to the general publicof the fullest possible information on matters of collective importance. Thepotential of such formal options has grown enormously in the context of online

86 HL Deb vol 739 col 953–954 9 October 2012.87 A. Mullis and A. Scott, ‘Reframing Libel: taking (all) rights seriously and where it leads’ (2012) 63

Northern Ireland Legal Quarterly 5.



and social media.88 They could do this in lieu of litigants reverting to the artificialforum provided by the court. They could be broadly effective without requiringa determination by a court. What most libel claimants want is a swift correctionor a right of reply.89 They do not want to become embroiled in expensive andlengthy litigation. The most effective way of vindicating a person’s reputation isto ensure that the truth is aired, and misrepresentations corrected. Most respon-sible defendants should be content to publish a swift correction when the truthis pointed out to them. The imperative of making such corrections is recognisedin journalists’ own statements of professional ethics.90 Where the truth is con-tested, a right of reply can assuage both parties’ sense of righteousness.

If a general right of reply and/or correction similar to that which exists inmany jurisdictions around the world was introduced,91 it could have a dramaticeffect on the perceived need to bring costly claims. Damages for vindication ofreputation could be withdrawn, and left available only for specific, identifiedlosses. The chilling effect of a potentially large damages award would be reduced,and importantly a closer approximation to the truth would enter the publicsphere and be made available to the public. Proper questions could be askedregarding the motivations of parties – bullying claimants and intransigentpublishers – who insisted on going to law.

CONCLUSION

On any reading, the emergence of the Defamation Act 2013 is the culminationof a phenomenally successful political campaign. The changes in the law ofdefamation that it has introduced will be significant, although it is as yet not clearprecisely how profound they will be. Much will depend on the judicial receptionof the Act. On that basis it might be expected that there will be uncertainty anda burden for litigants in the short to medium term. What is clear is that anopportunity radically to rethink the nature of interplay between the publicsphere and the legal regime, the proper function of law in the resolution ofpublic sphere disputes, has gone begging. Too much effort was focused onrevising elements of the substantive law; not enough on how to design a regimefor the resolution of arguments that might best triangulate the individual andsocial interests in reputation and free speech. It may be that the perturbations inthe law that are likely to be caused as judges come to terms with the new

88 See, generally, D. S. Ardia, ‘Reputation in a Networked World: Revisiting the Social Foundationsof Defamation Law’ (2010) 45 Harvard Civil Rights-Civil Liberties Law Review 261.

89 This general preference among libel claimants for a discursive remedy is recognised in the Pre-ActionProtocol for Defamation, para 1.4.

90 See, for example, the PCC, Editors’ Code of Practice, clause 1(ii) (‘a significant inaccuracy, misleadingstatement or distortion once recognised must be corrected, promptly and with due prominence,and – where appropriate – an apology published); NUJ, Code of Conduct, clause 3 (‘[a journalist]does her/his utmost to correct harmful inaccuracies’).

91 For a review of the position across European jurisdictions, see A. Koltay, Freedom of Speech: theUnreachable Mirage (Budapest: CompLex Kiadó, 2013) ch 2, and see generally, G. Bruggemeier, A.Ciacchi and P. O’Callaghan (eds), Personality Rights in European Tort Law (Cambridge: CUP, 2010);H. Koziol and A. Warzilek (eds), The Protection of Personality Rights Against Invasions by Mass Media(New York: Springer Wein, 2005).



landscape may provide further opportunities for reflection and refinement. Ifworkable systems of alternative dispute resolution can be devised, whether in thecontext of press regulation or beyond, this could do much to undercut thecontinuing problems of libel law. In the meantime, it will remain the case thatthe sheer cost of bringing and defending libel claims will deny some litigantsaccess to justice to vindicate their reputations and some publishers the right fullyto express themselves as they might otherwise choose. The cost will be countednot just in individual hurt and frustration, but also social detriment.



Documents

Tilting at Windmills: the Defamation Act 2013