The Defamation Act 2013 – a Study in Policy-Making and Legislative Change
About the Author
Samantha Love read Law at Merton College, Oxford, and is currently following the BCL course.
The recent changes to the UK law on defamation have been noted worldwide.
More accurately, these changes affect the law on defamation in England and Wales; Scotland already had separate law and Northern Ireland has decided not to adopt the new legislation. This difference in law between (what is currently) a single state is just one complication in an already complex area. Whilst the old law was criticised from almost all angles and all three major political parties included reform in their 2010 electoral mandates, it was never certain what the new law would do. This is an area which sits within a web of other doctrines and international obligations, and which has global repercussions. Perhaps the most interesting aspect of the changes to England and Wales’s defamation laws is this web of existing legal obligations and policy concerns, some of which were relatively new and demanded change.
Controlling defamatory statements – the wider policy picture
A consistent complaint about the old law on defamation was that it didn’t adequately protect freedom of speech, because it was too difficult to defend a lawsuit so writers would more often decide not to publish a controversial piece rather than risk ending up in court. Protecting freedom of speech is considered important in this area for a number of reasons. Allowing people to criticise those they think are wrong is important for democracy; otherwise nobody could criticise the government or politicians and convince others that their policies are misguided or that they are unfit to govern. Equally, it allows us to know what companies or influential individuals have been doing when it has an impact on their business reputation and our desire to purchase from them, such as uncovering that a business hires workers on a low wage and makes them work in appalling conditions. In academic circles, it allows for proper debate over new ideas or developments rather than worrying that if your criticisms of another’s work are wrong you will be sued.
The counterpart to this is a concern about protection of reputation – to what extent can somebody or an organisation complain that their reputation has been unjustly damaged or even ruined? Sometimes libellous statements may have an impact on a person or business’s reputation but won’t cause them any financial loss. Do we care about reputation in and of itself? We may think that the answer is different when you compare individuals and businesses – politicians and celebrities are humans as well as public figures so that defamatory statements may affect their private life as well as their ‘business’ life, whereas if an unjustified or untrue statement about a business makes no impact on their profits we might say that the business has no right to complain; they do not have a private or social life that can be affected.
Similarly, the law of defamation interlinks with the right to privacy. Our earlier justifications for publishing information could be seen only to allow information to be published that is relevant to that person’s ability to perform their public functions, or that shows a reputation they have tried to make for themselves to be untrue. That is arguably the reason for which the revelations about Max Mosley’s sexual activities were so controversial: it was not relevant to his ability to run a successful business. In contrast, when considering the use of photographs of Naomi Campbell leaving a drugs support group, the House of Lords considered it important that she had said on numerous occasions that she did not take drugs and had therefore made her drugs-taking a relevant part of her reputation ( UKHL 22). Although the right to privacy will not necessarily be relevant to a defamation case, since defamatory statements may also be about private information, the two areas of law interlink here. You may well successfully defend a defamation case only to find the claimant wins a breach of confidence case.
Quite apart from any wider arguments of principle, there is also the consideration that clear law on defamation will help to encourage publication of opinions or controversial stories, which supports an important industry. This extends beyond the press; it covers academics, novelists, scriptwriters, bloggers and satirists. It may not just be that we want to permit free speech; it is also important to ensure that parties know what the law is likely to permit in advance so that they do not have to worry about the cost of defending a case. The current furore over English press standards in particular means that new regulation of the press industry is currently being considered. Any defamation laws need to sit with this new framework, and may need to be changed if the finalised controls are incompatible with the new Act or create too many hoops for editors to hump through before they can decide to publish.
The global implications of the defamation laws in England and Wales ought also to be considered. Now that much information is published online, there is a ‘publication’ of information in almost every legal jurisdiction and so a case could theoretically be brought anywhere in the world. Our previous law had been much criticised for making London into a ‘libel tourism’ destination – Boris Berezovsky sued Forbes for defamation in the UK in 2000 despite only 1% of its readership being there. If one country’s libel laws allow cases to be brought more easily than elsewhere, it can attract cases which are not really relevant to that jurisdiction. It is a problem that the courts were already addressing – cases brought by Pavel Karpov and Stanko Subotic were dismissed in 2013 because neither of them had a reputation to defend in the UK.
The question with all these elements is where the line is between what speech is justified and what is not. We might all agree that true information that is relevant to society’s view of that person/organisation is relevant, but what about strong personal opinions that move into personal attack? What about private information that might not have an impact on a businessman’s ability to do his business but destroys his reputation? What if it doesn’t actually cause him any financial loss but he feels he has been wronged? These are all concerns which feed into the creation of any defamation law framework.
The Legal Landscape
The new law could not be created from a completely clean slate. These are just a few things which needed to be considered:
i. Existing protection of freedom of expression in the European Convention of Human Rights, as copied across into the Human Rights Act 1998. Any legislation which did not sufficiently protect this right would be liable to challenge either by a UK court declaring it incompatible with the Human Rights Act, or through an appeal to the European Court of Human Rights. Half an eye therefore had to be kept on what the Court would be likely to accept, based on previous case law.
ii. Existing protection of the right to privacy in the same legal instruments. The ‘public interest’ defence ensures that authors think about whether the information to be published is a matter of public interest, taking into account all the circumstances of the case. Publication of personal information not relevant to a person’s professional reputation may not come under this defence, so the right to privacy is indirectly relevant.
iii. Parliamentary privilege under Article 9 of the Bill of Rights 1688 prevents the courts from questioning anything which is said in Parliament. John Hemming MP has used it to break a number of super-injunctions (court orders preventing anyone from discussing a matter or even discussing the existence of the injunction) including one about the footballer Ryan Giggs. As there is a qualified privilege for the reporting of events in Parliament, the press were then also able to publish information about the super-injunction. This rule also means that any defamatory statement made in the House of Commons or Lords cannot be challenged in court, and nor can any objective report of that comment being made. This is an important principle of the UK constitution and so challenging it would have been controversial to say the least.
iv. The existing law and current expectations. Completely overhauling the law on defamation would have caused a great deal of confusion and may have caused more harm than good. Insofar as the legislators were able to use existing elements of the common law and simply alter those parts which did not work, they did so in order to prevent the change having the effect that writers were so unsure of the legal position that they still did not dare to publish.
The new act – targeted changes
This is not intended to go through the provisions of the new Defamation Act in great detail; if you would like to see the Act in full then have a look at it here. Instead, a few key points about what it aims to achieve, why and how will be considered. Overall, the Act keeps the previous framework but makes alterations to meet concerns about the old law’s impact on freedom of speech:
i. the first thing to note is that it does not fully codify the law on defamation. Certainly the common law defences have been replaced with (very similar) statutory defences (ss2-7), but whilst the common law definitions of ‘publish’ and ‘statement’ are incorporated through s15 the actual definition is left to the common law. And as discussed, all the relevant law for publication of potentially defamatory comments is not just covered by defamation.
ii. for-profit organisations now need to show that the defamatory statement has caused or is likely to cause serious financial loss in order to bring a claim (s1(2)). This matches the discussion earlier about what aspect of a reputation is important – for money-making organisations reputation on its own may not be important as long as it still makes money, whereas a person will find a defamatory statement has an impact on their social standing even if it does not cause financial loss. Individuals and not-for-profits need to show ‘serious harm’, which is likewise aimed at preventing insignificant claims.
iii. peer-reviewed statements in scientific or academic journals are privileged provided they are not written with malice, and published reports or summaries of the work are also privileged. Whilst the legislation is aimed at encouraging debate among academics, Mick Hume has criticised the provision for “snobbishness” as assuming that ‘intellectual’ debate is more worthy of protection than criticism by an ordinary person because the writers are considered more respectable. Do we really think a complete ring-fencing of academic debate is necessary? Or is it simply that the peer-review requirement will ensure that any published comments are not malicious and only criticise another where academically justified? This simply sets a different mechanism for deciding such issues, rather than taking academia outside any defamation controls.
iv. there is now a default position of no-jury trials. This should save costs and prevent the upward drift of damages awards; there was a concern that juries would grant increasingly higher awards and that these were out of line with the relatively low awards for bodily injury. Again, Mick Hume has criticised this provision as taking the decision away from the ordinary person. Certainly the idea of defamation law is that the statement would lower the complainant in the eyes of the ordinary person, so there is an intuitive appeal of jury trials. They are still possible if a court order is given, and may be useful where a white middle-class judge may not understand the reputation at stake or whether it has been tarnished (a rapper, for instance?) but of course only time will tell when (or if) jury trials will be ordered.
v. changes brought by the Internet have been accommodated. Section 5 deals with the duties of website operators, and gives them limited protection from claims if they did not upload the information, and section 8 prevents a new time limit starting for claims when information is republished in a way which is substantially the same. Previously each publication started the time limits again, and because viewing a webpage counted as a new ‘publication’ the defamatory statement was in constant publication. This will prevent cases being brought a long period of time after the original publication and therefore enhance certainty for publishers.
vi. perhaps the most significant change in terms of caseload is the new rule on jurisdiction under section 9. S9(2) says that if the claimant is not domiciled in the UK or EU “A court does not have jurisdiction to hear and determine an action … unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.” This aims to stop the ‘libel tourism’ trend, although as noted it was already being slowed by the courts. Of concern however is the fact that Northern Ireland has not adopted this new law. If England, Wales and Northern Ireland previously had the most permissive libel laws in the world, then Northern Ireland now has them. Belfast may well become the new ‘libel capital’. The problem has potentially only shifted across the water.
Keeping up with the times? Some conclusions
To understand the new Defamation Act it is important to consider the wider picture of existing expectations of relevant parties and legal obligations of the State, the desire to support free speech and the changes brought about by the Internet which make global publication a fact of life. The new legislation alters those elements that were making the UK law particularly problematic, such as the multiple publication rule, but the effort may well be undermined by the non-adoption of the law in Northern Ireland. This is one area of law which has global repercussions and is increasingly limited by international obligations. It is just one example of many that the policy landscape is increasingly international and moving at a rapid rate, but that the usual concerns of certainty still exist and that too much change is seen as a problem.