The Defamation Act - what businesses need to know

In house lawyers forum – autumn 2013

1. significant provisions and changes

2. issues when you are defendant

3. issues when you are claimant

4. recommendations

• online publication

• British Chiropractic Association v Simon

Singh

• index on censorship

• does the Act address these concerns?

• a statement is not defamatory unless its

publication has caused or is likely to

cause serious harm to the reputation of

the claimant

• harm to the reputation of a body that

trades for profit is not ‘serious harm’

unless it has caused or is likely to cause

the body serious financial loss

• honest opinion

• publication on matter of public interest

• publication in a scientific journal

• qualified privilege

• limitation (single publication rule)

• operators of websites have a defence if

it was not the operator who posted the

statement

• defeated if the claimant shows that

– it was not possible for them to identify

the person who posted the statement

– the claimant gave the operator a notice

of complaint in relation to the statement

and they failed to respond

• general protection for intermediaries

(persons who are not the author, editor

or publisher of the statement)

• separately – availability of third party

orders (s.13)

• Act intended to rebalance law in favour

of freedom of speech

• but most helpful for certain types of

defendant e.g. journalist, scientists,

website operators

• websites may still operate notice and

take down procedure

• clearly utilise defence gateways

– opinion

– public interest

• more uncertainty in law for now

• claims will need to be more thoroughly

assessed before they are initiated

• need to pursue smaller bodies – costs

risks

• take advantage of website operator’s

defence regulations

• for public bodies – note application of

Carmarthenshire case

• use of

– other causes of action e.g. harassment,

unfair advertising laws

– technical means of reputation

management

Get in touch if you have any questions or

would like further information.

t +(0)121 237 3992

e richard.nicholas@brownejacobson.com