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Libel reform – what’s in it for the regional press?

The Bill, unveiled on 15th March, does not directly tackle some of main bugbears, such as the high cost of libel litigation and the need to nail issues early with the help of a more effective pre-action Protocol.

It limits itself to eight issues, many of which are not innovative and would – broadly speaking – simply enact into statutory form a number of existing common law principles that judges already apply.

Two points, however, are of particular interest to the regional press.

Paragraph 5 of the Bill extends the ambit of statutory Qualified Privilege (QP), an issue that is close to local papers’ heart as they look to make copy as safe from liability as possible.

I should declare an interest here, because this proposed reform was inspired by representations put forward by my firm, based on problems encountered by regional publishers over the 15 years since the last Defamation Act was passed in 1996 – a period of globalisation and foreign travel in which international events have become increasingly relevant to local readerships.

For example, the Bill extends statutory QP to fair and accurate reports of material issued for the information of the public by a police force “anywhere in the world”.

This change was prompted because, for fear of being sued, local papers in England had declined to publish defamatory statements made by a Thai police chief – including an appeal for witnesses based in England – about a UK citizen arrested in Bangkok for alleged sex offences.

The Bill also extends statutory QP to reports of proceedings at a general meeting of a “quoted company”, as widely defined in the Companies Act 2006 to include overseas companies on the FSA’s Official List, rather than keeping this restricted to such meetings of only a “UK public company”.

This reform was triggered because, without it, local papers in England had decided against publishing critical statements made at a general meeting of a Hong Kong-registered public company which were highly defamatory of named British executives.

The Bill also extends statutory QP to reports of public meetings held “anywhere in the world”.

Another noteworthy innovation is paragraph 6, which proposes a new ‘single publication rule’ in place of the burdensome ‘multiple publication rule’ that has been part of English law since the notorious case of Duke of Brunswick v Harmer in 1849.

Regional papers often face libel claims from litigants-in-person suing over content published years ago, but which they can currently argue (under the multiple publication rule) continues to be published anew whenever accessed in archived reports on their websites.

The Bill envisages such delayed claims would be time-barred after 12 months from the date of first publication, unless any subsequent publication is “materially different” from the manner of the first publication, having regard to the level of prominence and extent of the subsequent publication.

So, if a defamatory report is first published on a paper’s homepage then recedes as usual into a less prominent archive, claimants will generally not be permitted to sue on it after 12 months from its first publication.

Broadly, the rest of the Bill rehashes in statutory form the existing common law defences of responsible journalism (Reynolds QP), Truth, and Honest Opinion.

It reiterates the important principle from last year’s Thornton ruling that a statement is not defamatory unless its publication has caused, or is likely to cause, substantial harm to reputation.

To streamline proceedings, the Bill also abolishes jury trials for libel unless the court directs otherwise, and it tightens up rules to prevent foreign claimants suing for libel in England without appropriate links to this jurisdiction.

Overall, it can be said the Bill is at least a positive statement of intent from the Government to unelected judges that libel law’s chilling effect on free speech has been of great concern in recent years.

It remains to be seen whether it will meaningfully thaw the chilly publishing climate or simply spark new courtroom skirmishes as litigants test its wording.

But the extensions of statutory QP and the advent of a single publication rule would certainly be a good start for the regional press.

  • Solicitor Nigel Hanson is a member of Foot Anstey’s media team. To contact him telephone 0800 0731 411 or e-mail [email protected] or visit www.footanstey.com.