Libel tourists beware – reform is on its way

16 March 2011 by Rosalind English

The government’s proposals for reform of the law on defamation have been published. The bill seeks to address concerns that libel law has a chilling effect on freedom of speech, failing to strike the right balance between free speech and protection of reputation.

The pressure of the widely-supported reform campaign, inspired by recent libel actions stifling comment on issues of scientific and academic debate, has no doubt contributed to the manifesto commitment on the part of all three parties which the coalition is now following through. The consultation paper and draft bill has been met with muted enthusiasm, with critics claiming that the proposed statute at best codifies the common law, with all its confusions and complexities, and that the whole is at worst “too little, too late” to meet their reform demands.

The bill is designed to address these three principal concerns:

1. the threat of libel proceedings frustrating “robust” scientific and academic debate, impeding responsible investigative journalism and the important work of  NGOs

2. trivial or unfounded claims stifling debate

3. libel tourism by claimants with little connection to this country

The Bill’s main provisions

1. Substantial harm: a requirement that the publication of a statement has caused or is likely to case substantial harm to the reputation of the claimant.

Libel is currently actionable without proof of actual damage. This proposal would introduce a statutory test for seriousness of harm that would discourage trivial claims and allow unmeritorious actions to be struck out as an abuse of process.

2. Responsible publication on matter of public interest: it is a defence to a libel action that the statement was in the public interest and was reported responsibly.

The common law defence of public interest which has developed since Reynolds v Times Newspapers extends to mainstream journalism but the uncertainty of its scope has created a chilling effect on reporting generally. Because of its complex nature and uncertain application this defence is rarely relied upon.

The statute makes no attempt define what is meant by “the public interest”. It is a concept that is “well-established” in English common law and any statutory definition would be “fraught with problems”
Nor, in establishing what is meant by “responsible” publication, is there to be any reference in the statute to the extent to which the defendant has complied with relevant codes or guidelines, since this would spur satellite litigation over the meaning of these codes.

The defence of public interest publication should apply to inferences and opinions as well as statements of fact, which means that there is a certain overlap between this defence and the new defence of honest opinion (see below)

3. A statutory defence of truth abolishes and replaces the common law defence of justification. The defendant is required to show that the imputation conveyed is “substantially true”.

Under current law a defence of “justification” can only be made out if the defendant can prove that the imputation in question is substantially true.
The “substantially true” requirement reflects the common law position on justification which requires that the defence is made out if the “essential” or “substantial” truth of the sting of the libel is made out.

4. A statutory defence of honest opinion abolishes and replaces the current common law defence of fair  comment.  It is a defence if the author can show the statement is an honestly held opinion based on fact and on a matter of public interest.

This provision was particularly inspired by the Singh litigation, and the bill seeks to clarify some of the issues around the meaning and the difference between fact and opinion, which determined whether a statement was covered by the common law defence of fair comment or not.
Condition 1: For the defence to apply, the statement must be an expression of opinion and not an assertion of fact.

Condition 2:  The opinion must be on a matter of public interest.

Condition 3: The opinion must be one that an honest person could have held on the basis of a fact which existed at the time the statement was published or a privileged statement published before the statement complained of.

This last condition is designed to remove some of the confusion in the case law by focussing the test on a set of relevant facts that the defendant must prove in order to prove a “sufficient factual basis” for the comment. The defendant in other words should no longer be required to prove the truth of every single allegation of fact set out in the statement, a requirement that has proved so crippling for scientific debate.

The defence of honest opinion, like its common law counterpart, will be defeated by malice, in other words the defence will fail if the claimant can prove that the defendant did not hold the opinion expressed

5. Updating of the statutory defences of absolute and qualified privilege: absolute privilege extended to foreign courts, qualified privilege extended to foreign public bodies and organisations.

These are currently set out in Schedules to the Defamation Act 1996. The draft bill extends the circumstances in which these types of privilege apply, including a provision to give qualified privilege to reports of proceedings at academic and scientific conferences. The view was expressed that

in the internet age it is illogical for the rest of the world to be able to know about and comment on a matter while it cannot be safely reported in the UK.

It is proposed therefore that the statutory defence of qualified privilege should be extended to cover proceedings in other countries.

6. Introduction of a single publication rule which will mean that subsequent publications of the defamatory statement do not invariably amount to fresh libel.

This provision is to prevent an action being brought in relation to publication of the same material by the same publisher after a one year limitation period has passed.

The current position is that each hit on a webpage creates a new publication giving rise to a separate cause of action in libel. As a result internet publishers (already passively exposed to libel)  are potentially liable for any defamatory material accessed via their online archive and repeated elsewhere on the net. This rule is being introduced to prevent a fresh cause of action accruing every time a web page is downloaded.

The single publication rule will not apply where the manner of the subsequent publication of the material is materially different from the manner of the first publication

7. Jurisdiction: a court will not accept jurisdiction in foreign cases (outside the EU) unless England and Wales is “clearly the most appropriate place to bring an action”.

This is to address the chilling effect of libel proceedings threatened by “wealthy foreigners and public figures” the effect of which is to stifle investigative journalism, regardless of whether actual cases are ultimately brought. Again, this is a recognition of the global nature of information; publication is no longer like a road accident, giving rise to harm just within the national boundaries of where the incident happens. So where a statement is published in England, but also (as is inevitably the case) abroad, the court is required to consider the “overall global picture” to consider where ti would be most appropriate for a claim to be heard. This equips the courts with a much more robust tool with which to combat libel tourism than the common law discretion to refuse jurisdiction on the grounds of forum non conveniens.

8. The removal of the presumption of trial by jury: trial to be without a jury unless court orders otherwise.

Currently section 69 of the Supreme Court Act 1981 and section 66 of the County Courts Act 1984 provide for a right to trial with a jury in defamation proceedings.  The complexity of the division between the issues the issues to be determined by judge and jury has created “real difficulties” militating against sensible resolution of preliminary issues of libel actions at an early stage.

Not included in the bill, but put out for consultation, are such issues as responsibility for publication on the internet, protection for secondary publishers such as internet service providers; an interlocutory procedure to resolve key preliminary issues, and the question of whether restrictions should be placed on the ability of corporations to bring a defamation action.

The most significant proposal up for consultation is whether to restrict the liability of corporations to launch libel actions against their critics, and, in particular, to make any remedy sought by such corporate claimants suitable to their nature, ie substituting public statements of retraction or apology for financial compensation.

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Related reading:

• Inforrm blog: Does anyone gain from the Libel Reform Bill?
• Inforrm blog: Few surprises and little radicalism
• Three cheers for libel reform bill
• Jury’s out: government unveils draft libel reforms
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