Libel tourists beware – reform is on its way

16 March 2011 by

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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related reading:


  1. Thanks for the post! Defamation seems to be an increasing problem. Especially with the growth of sites like Twitter. Internet libel seems to be the growing problem. It is hard to maintain freedom of speech while having restrictions, but it is necessary. It is a difficult thing to juggle.

  2. Tara Davison says:

    They should make a significant difference between Libel which effect an individual and a process or Organisation. Organisation’s should be accountable to the Public and scientific debate is just that debate.

    Internet Libel should be left as being published daily as this facilitates claimants to remove third party defamation.

    They should bring back Criminal libel for serious cases and prosecute for Contempt of Court without reference to the Attorney General.

    Fair comment on a matter of public interest should be extended so that the level of evidence is reduced – where there is no malice or lack of responsibility.

    Privacy needs to be strengthened to prevent intrusion into private life conversely public figures should not be able to sue except in extreem cases -where the journalist has been respectful

    Libel need reforming but these ideas help no-one

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability disclosure Discrimination disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Family life fatal accidents act Fertility FGM Finance fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Germany Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection hammerton v uk happy new year Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII hereditary disorder Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity India Indonesia Infrastructure Planning Committee inherited disease Inhuman and degrading treatment injunction Inquest Inquests insurance insurmountable obstacles intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty in vitro fertilisation Iran Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence limestone pavements lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Sumption Lord Taylor luftur rahman MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: