Effect of Defamation Act 2013

Under the 2013 Act, “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”

The concept of libel actions which are trivial being struck out is an established principle of case law since Jameel (Yousef) v Dow Jones & Co. Inc. [2005]. This section is intended to ‘raise the bar’ (to use the Justice Ministry’s phrase) as to what constitutes a viable libel complaint. 

A claimant will therefore need to show that the words complained of, for example: a) caused or are likely to cause serious harm to the claimant’s reputation; and b) tend, for example, to: i) lower the claimant in the estimation of right-thinking or reasonable members of society; or ii) substantially affect in an adverse manner the attitude of others towards the claimant, etc.

Reynolds privilege is abolished under the 2013 Act. Instead, it will be “a defence to an action for defamation for the defendant to show that — a) the statement complained of was, or formed part of, a statement on a matter of public interest; and b) the defendant reasonably believed that publishing the statement complained of was in the public interest.”

In the new defence, there is no express requirement for the publisher to prove that it: a) has met a standard of responsible journalism; b) satisfied any or all of the Reynolds factors; or c) acted both fairly and responsibly in gathering and publishing information. Instead, assuming that the statement was on a matter of public interest, the issue will boil down to the defendant’s reasonable belief. In deciding this, “the court must make such allowance for editorial judgement as it considers appropriate”, as well as “all the circumstances of the case”

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

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

Fair comment is abolished. The honest opinion defence requires that:

a) the statement complained of was a statement of opinion; b) the statement complained of indicated, whether in general or specific terms, the basis of the opinion; and c) an honest person could have held the opinion on the basis of — i) any fact which existed at the time the statement complained of was published;ii) anything asserted to be a fact in a privileged statement published before the statement complained of.

Malice has been simplified to “The defence is defeated if the claimant shows that the defendant did not hold the opinion”. This is likely to be difficult for a claimant to prove in most cases. 

Where a publisher publishes the opinion of another person (“the author”), then “the defence is defeated if the claimant shows that the defendant knew or ought to have known that the author did not hold the opinion”.

Justification has been abolished in favour of a statutory truth defence. The defendant has to prove that “the imputation conveyed by the statement complained of is substantially true”. Section 5 of the 1952 Act is more or less transposed into section 2(2) of the 2013 Act with more modern language, with a reference to “seriously harm”, rather than “materially injure”, the claimant’s reputation. It seems likely that the legal principles underlying justification will probably continue to be applied by the courts.

Expansion of statutory privilege (section 7)

The 2013 Act expands the absolute and qualified privileges set out in the 1996 Act. In summary, the main changes are: a) An extension of the privilege from reports of certain UK or EU proceedings or official documents to reports of equivalent proceedings or documents anywhere in the world.  b) A new qualified privilege for fair and accurate reports of proceedings: i) at press conferences; ii) of scientific or academic conferences. 

Section 8 replaces the existing multiple publication rule under which every newpublication of a defamatory imputation gives rise to a separate claim. For the future, a new ‘single publication rule’ is intended to prevent a claim being brought in respect of a publication of the same material by the same publisher following the expiry of a one year limitation period that runs from the date of first publication to the public.

The 2013 Act will remove the presumption that defamation cases shall be tried with a jury in the Queen’s Bench Division. The position under the new law will likely be that a defamation action “shall be tried without a jury unless the court in its discretion orders it to be tried with a jury”: s.69(3) Senior Courts Act 1981. 

The result overall is likely to be that most defamation actions can be determined quicker, more efficiently and at less cost. This is because the court does not need to leave issues for a jury to determine (e.g. a meaning which is capable of being defamatory) and can instead make an early determination of the actual meaning. The early determination of meaning and other issues can help parties more quickly assess their chances of winning, without waiting for a jury to decide

Power of court to order a summary of its judgment to be published (section 12). The Act gives the court power, if the claimant wins, to order the defendant to publish a summary of the judgment. The legislation also states that: „ The wording of any summary and the time, manner, form and place of its publication are to be for the parties to agree. „ If the parties cannot agree on the wording, the wording is to be settled by the court. „ If the parties cannot agree on the time, manner, form or place of publication, the court may give such directions as to those matters as it considers reasonable and practicable in the circumstances.

Section 13 allows orders to remove statements:

S13 (1) where a court gives judgement for the claimant in an action for defamation, it may order the operator of a website on which the defamatory statement is posted to remove the statement, or any person who was not the author, editor or publisher of the defamatory statement to stop distributing, selling or exhibiting material containing the statement.