24 September 2014

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What the Defamation Act means for the regional press

It’s been a long time coming – but after a good deal of last minute politicking, the Defamation Bill finally received Royal Assent last week, and become the Defamation Act 2013.

The question now is when will (most of) its provisions come into force?  The general consensus seems to be that the government will complete this final formality some time over the next 6 months, most probably in the Autumn.

But even then, there will be no uniform approach to libel.  The new Act will apply in full to England and Wales; parts will apply to Scotland; and none of it will apply to publishers in Northern Ireland.  The reason for the discrepancies are due to decisions made (or not made, in the case of NI) by the Scottish Parliament and NI Assembly.

The Act has been criticised for tinkering around the edges, and for not grasping the nettle to make radical and fundamental changes to the law.  Deciding whether that criticism is fair or not is now irrelevant.  The reality is that before the end of the year, a number of important changes will be made to the law which are likely to affect regional publishers and journalists significantly.

For example:

  • The very first section of the Act was the subject of last minute debate in the days preceding the granting of Royal Assent, with proposals being made to restrict the ability of companies to sue for libel.  The deal struck in both Houses of Parliament means that now, a statement is not defamatory unless the claimant can show it caused him serious harm, or was likely to cause serious harm to his reputation.  And “bodies which trade for profit” can only meet this test if the article in question caused (or is likely to cause) serious financial loss.
  • The defences of truth, honest opinion, and public interest privilege have been put on a statutory basis.  These provisions will have some consequential changes to existing law, some of which will be advantageous for the regional press, though some will not.
  • As has been flagged for some time, online publishers have been given more protection, which is good news for the regional publishers who are investing heavily in digital.  Two reforms are worth mentioning:

First, the law relating to ‘limitation’ has been clarified.  Under existing law (stemming from the Duke of Brunswick’s libel action in 1849, by which he sued on an article first published in 1830), the 12 month limitation period in which a claim has to be brought starts afresh each time there is a new publication.  In the digital age, this means that each time an article is downloaded, a new 12 month limitation period is triggered.

The reform introduced by the new Act is that the 12 month limitation period applies only from the date of the first publication, and not from the dates of any subsequent publication.  Good news – but there is a sting in the tail.  This rule will only apply if each subsequent publication is not “materially different” from the original article.  And the Act helpfully tells us that at least two of the factors which the Courts may bear in mind when considering this issue are the level of prominence that a statement is given, and the extent of the later publications.

Second, a new defence has been introduced for website operators in respect of defamatory User Generated Content posted by third parties.  The workings of this defence may have to be reviewed if and when the Government introduces subsidiary regulations, but meanwhile, the unequivocal message is that if a publisher receives a complaint about anonymous UGC, then to ensure protection, you must respond to the complaint.  In practice, this means removing it immediately.

Although little reported, some very useful changes have been introduced which extend the protection of qualified privilege to articles based on certain categories of event or information.  For the first time, fair and accurate reports of scientific and academic conferences (and their related documents) will be protected, as will articles based on information provided by public companies and at press conferences.

Mind you, it’s not all good news.  Hidden away in the final sections of the Act are a couple of provisions (which have already come into force), which say that relevant parts of the Act do not apply when a claimant’s right to sue already exists on the date when the Act comes into force.  As a result, only when those rights have expired, 12 months on from the Act’s commencement date, will the new law become fully applicable.

But overall, last week was a good week for journalism.  As writer Simon Singh said, we now have legislation which will “change the landscape of free speech inBritain”.  I have a feeling that every regional journalist and publisher will heartily agree with him.

2 Comments

  1. Brendan, London

    Does the final sections of the act therefore mean that any defamatory statements made before the Defamation Bill gained Royal Assent will be treated according to the 1996 Act rather than the new 2013 Act?

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  2. Tony Jaffa, Foot Anstey

    Yes – that’s correct

    Report this comment



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