“Freedom of speech is essential in a democratic society” were the words Justice Secretary Ken Clarke used to introduce the 2012 Defamation Bill, published last Friday.
For the press, there is indeed much to applaud in the government’s latest attempt at press regulation but some commentators are already voicing concern that the Bill does not go far enough and is not clear enough in places.
The headline provisions contained in the Bill are:
- The introduction of a “substantial harm” test. To be successful in a claim for defamation, it must be established that substantial harm to reputation had occurred or was likely to occur. This raises the bar for making a successful claim and should result in easier strike-outs of the more trivial cases.
- A single publication rule. This will be particularly significant in relation to limitation periods in cases of online publication. If this provision is introduced as law, limitation for bringing a claim for defamation will end a year from the date of first publication even if there has been subsequent publication of the material which is either identical or substantially the same. This new provision is aimed at ending the current situation whereby online material is deemed to be published every time it is downloaded which effectively extends the limitation period indefinitely.
- Putting the Reynolds Privilege or responsible journalism defence onto a statutory footing as ‘responsible publication on a matter of public interest’. On the whole, the statutory defence mimics the predecessor common law defence by specifying a similar list of factors to be considered when deciding what constitutes ‘responsible’ publication. However, an inherent problem with statute is that it does not allow for such subtle distinctions and flexibility as case law. It will remain to be seen how Judges will treat the grey areas that are likely to emerge between the black and white letters of the law. It is likely that pre-existing statute will still be considered persuasive and used as a tool to aide interpretation of the new statute.
- Power to the court to compel a losing defendant to publish a summary of the court’s judgment. This would be in a form of words to be agreed between the parties or stipulated by the court if agreement cannot be reached.
- A statutory defence for website hosts where a third party user posted the defamatory comments. To be able to rely on this defence, if a website operator receives notice that it is hosting a defamatory comment, it must remove the comment within a reasonable time. There are suggestions that a time limit for taking down such illegal posts might be set.
One area for concern is the new “honest opinion” defence. At first glance, this looks to be a simple renaming of the familiar “fair comment” defence. Closer scrutiny reveals that the change may be more than one of semantics.
The new Bill places an unqualified caveat on this defence – the comment must concern a matter of “public interest”. Spiller v Joseph is currently the leading case on this defence. In his judgment, Lord Phillips noted that in this context, “public interest” was not to be interpreted too narrowly and even inferred that there might be a case for getting rid of that element to the defence.
Another provision which has prompted mutterings of alarm is the abolition of the right to a jury trial in defamation cases. However, the rationale behind such a change is hard to argue against: with only judges hearing cases, trials should be quicker and cheaper.
In fact, for many years now there have been increasingly fewer jury trials of defamation cases, and according to one commentator, there has not been a libel trial with a jury in the last 12 months.
There is much to be welcomed in the new Bill but this may not be the time for free speech campaigners to sit back and relax; celebration would seem perhaps a little bit premature.
There is still work to be done in calling for a few tweaks to this Bill and ensuring its safe navigation across the rough seas of Parliament and into law.