Libel Reform Campaign

Briefing for the Bill Committee of the Defamation Bill

Contents

Clause 1 Serious harm Clause 2 Truth Clause 3 Honest opinion Clause 4 Responsible publication on a matter of public interest Clause 5 Operators of websites Clause 6 Peer-reviewed statement in scientific or academic journal etc Clause 7 Reports etc protected by privilege Clause 8 Single publication rule Clause 9 Action against a person not domiciled in the UK or a Member State Clause 10 Action against a person who was not the author, editor etc Clause 11 Trial to be without jury unless the court orders otherwise Clause 12 Power of court to order a summary of its judgment to be published Clause 13 Special damage

Additional clauses needed: Clause 14 Corporations Additional clauses needed: Alternative dispute resolution About the Libel Reform Campaign Contacts
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Clause 1 Serious harm

A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. What is needed:
The law has allowed trivial and vexatious claims to proceed at huge expense. This has chilled free expression as defendants will back down and remove content or publish a clarification, rather than face huge potential costs and lengthy proceedings even if the claim has no merit. A clear and early hurdle, with judges striking out claims at an early stage in the case (before costs mount), will reduce this chill. The hurdle would include the extent of publication of the statement (whether enough people have read the words to pass the hurdle) as well as the amount of harm to reputation that the words could possibly cause. Such a provision would also prevent libel tourism in cases where publishers are sued in London while the vast majority of the publication and therefore any harm to reputation have been outside the UK.

The clause:
The Libel Reform Campaign welcomes the insertion of this clause, because as the Secretary of State Ken Clarke stated in the second reading debate the hurdle is raised a little. Other Ministers and Ministry of Justice officials have made it clear that their intention is to raise the bar. This ought to be re-stated in the parliamentary debates and stated in the explanatory notes in a clear manner. We stress, however, that this change is not sufficient to reduce the need for a new public interest defence or to restrict the ability of corporations and other non-natural persons to sue in libel. The clause is drafted in a manner consistent to the position set out by Justice Tugenhadt in the recent reference Thornton case (where he referred to the threshold as the seriousness of the defamatory statement). But the courts have generally taken a dual approach when looking at whether a case should proceed, considering both the seriousness of the harm to reputation of the defamatory imputation(s) and the extent of publication in the jurisdiction. Such an approach was supported by the Joint Select Committee on the draft Defamation Bill.
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Consideration of extent of publication deals with the question of whether a real and substantial tort has been committed and importantly whether any remedy would be proportionate to the cost of the action (this is helpful to prevent cases that are expensive, but where because of very limited publication, the court isnt really redressing damage). The question of the extent of publication and a proportionality test were set out clearly in the well-known Appeal Court Judgement of Jameel vs Dow Jones. Judgements in recent cases such as Davison vs Habeeb and others, and Tamiz vs Google have considered both the serious harm threshold and the extent of publication. What is required is that the courts themselves strike out cases at an early stage where there is no prospect of these two hurdles (and any other ingredients) being met.

We propose:
1) That as well as Clause 1 there is a requirement that the court strikes out an application which does not pass the Thornton hurdle of serious harm to reputation (the court decides that there is no reasonable meaning of the statement complained of that would meet that test) and the Jameel hurdle that it is not a real and substantial tort based on: the extent of the publication, or that any vindication obtained by the legal action would be disproportionate to the costs of the proceedings. 2) A clause containing that requirement needs to include reference to the point made in clause 13(2) of Lord Lesters Defamation Bill

No harmful event is to be regarded as having occurred in relation to the claimant unless the publication in the jurisdiction can reasonably be regarded as having caused substantial harm to the claimants reputation having regard to the extent of publication elsewhere.
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This would have protected defendants like cardiologist, Dr Peter Wilmshurst who was sued in London by a US company with a mainly-US reputation for comments overwhelmingly published in the US. 3) We recognise that there may be a way of achieving this through changes to the Civil Procedure Rules, however without such changes the problems as outlined above would continue. In the absence of such rule changes and in the absence to any objection to the principle of the clause we call for its inclusion in the bill. We will be proposing such an additional clause to enable the Public Bill Committee to discuss this matter.

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Clause 2 Truth
(1) It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true. (2) Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations. (3) If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimants reputation. (4) The common law defence of justification is abolished and, accordingly, section 5 of the Defamation Act 1952 (justification) is repealed.
Truth is the oldest defence in libel as stating the truth ought to be a justification, even if it does damage to an individuals reputation. Over time, case law has evolved so that statements are justifiable if they are found to be substantially (rather than in totality) true. As the defence of justification (as it was called) is one of the original defences in libel, getting this clause right is important. Whilst the explanatory notes to the Defamation Bill provide guidance on the intention of this clause, the naming of the defence could prove misleading. We believe that the wording of the clause otherwise appears satisfactory except there are a few issues requiring clarification.

Issues for clarification:

Reword the name of the defence to substantial truth. By changing the name of the defence from justification to truth it implies a narrowing of the defence by suggesting it is necessary is to demonstrate the whole truth and nothing but the truth of the statement. This will not alter the intention of this clause as the existing case law and the proposed statute as referenced in the bills explanatory notes, considers a statement justified when the substantial truth of a defamatory imputation is demonstrated. The Joint Committee on the draft bill (reference) took this view. Should clause 5(3) of Lord Lesters Bill be included? The defence of truth should not fail only because one meaning alleged by the claimant is not shown to be substantially true, if that meaning would not materially injure the claimants reputation in the light of what the defendant has otherwise shown to be substantially true.

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Clause 3 Honest opinion

(1) It is a defence to an action for defamation for the defendant to show that the following conditions are met. (2) The first condition is that the statement complained of was a statement of opinion. (3) The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion. (4) The third condition is that an honest person could have held the opinion on the basis of (a) any fact which existed at the time the statement complained of was published; (b) anything asserted to be a fact in a privileged statement published before the statement complained of. (5) The defence is defeated if the claimant shows that the defendant did not hold the opinion. (6) Subsection (5) does not apply in a case where the statement complained of was published by the defendant but made by another person (the author); and in such a case the defence is defeated if the claimant shows that the defendant knew or ought to have known that the author did not hold the opinion. (7)For the purposes of subsection (4)(b) a statement is a privileged statement if the person responsible for its publication would have one or more of the following defences if an action for defamation were brought in respect of it (a) a defence under section 4 (responsible publication on matter of public interest); (b) a defence under section 6 (peer-reviewed statement in scientific or academic journal); (c) a defence under section 14 of the Defamation Act 1996 (reports of court proceedings protected by absolute privilege); (d) a defence under section 15 of that Act (other reports protected by qualified privilege). (8)The common law defence of fair comment is abolished and, accordingly, section 6 of the Defamation Act 1952 (fair comment) is repealed.
The common law fair comment defence has not afforded sufficient protection to the expression of honestly held opinions (for instance in the Owlstalk case where the comment What an embarrassing, pathetic, laughing stock of a football club weve become was subject to a libel case). The publication of honestly held opinions is an important part of the right to freedom of expression. In order to better protect such expressions of opinion we support the inclusion of this defence in the final bill. We are pleased that the government has listened to representations made during the consultation on the draft bill and improved this defence, especially in regards to subsection (4). It is also welcome that condition 3 is an objective test consisting of two elements and that it is enough for one to be satisfied. We note that common law qualified privilege is missing from the list of privileged statements in subsection (7), and this is an error. We will produce an amendment to probe this matter.

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Clause 4 Responsible publication on a matter of public interest

(1)It is a defence to an action for defamation for the defendant to show that (a)the statement complained of was, or formed part of, a statement on a matter of public interest; and (b)the defendant acted responsibly in publishing the statement complained of. (2)Subject to subsections (3) and (4), in determining for the purposes of this section whether a defendant acted responsibly in publishing a statement the matters to which the court may have regard include (amongst other matters) (a)the nature of the publication and its context; (b)the seriousness of the imputation conveyed by the statement; (c)the relevance of the imputation conveyed by the statement to the matter of public interest concerned; (d)the importance of the matter of public interest concerned; (e)the information the defendant had before publishing the statement and what the defendant knew about the reliability of that information; (f)whether the defendant sought the claimants views on the statement before publishing it and whether an account of any views the claimant expressed was published with the statement; (g)whether the defendant took any other steps to verify the truth of the imputation conveyed by the statement; (h)the timing of the statements publication; (i)the tone of the statement. (3)Subsection (4) applies in relation to the defence under this section if the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party. (4)In determining for the purposes of this section whether the defendant acted responsibly in publishing the statement complained of, the court must disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it. (5)For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion. (6)The common law defence known as the Reynolds defence is abolished.
Clause 4 is not a new public interest defence. It is the codification of an out-of-date version of the Reynolds Defence of responsible publication. The Libel Reform Campaign, and the thousands of writers, citizens and organisations affected by the chilling effect of libel, have called for a new public interest defence. Reynolds has been of use to large newspaper groups, but even for them it has been expensive, unpredictable and time consuming to establish. It is ill-suited to the natural discourse of citizens, such as patient group forums and has been of no use to the ordinary man on the street, to scientists such as Simon Singh and Ben Goldacre, nor to human rights organisations such as Global Witness. We propose that a new defence should be included in addition to Clause 4 to create a genuinely accessible public interest defence and to help claimants seek swift correction or clarification. Clause 4 itself should be amended, to reflect the more recent responsible journalism defence as outlined by Lord Justice Brown Flood v Times (which sets out to avoid the judge becoming writer and editor). The responsible journalism defence should also require the claimant to show that the defendant has been irresponsible if the -6-

statement is on a matter of public interest. The factors determining responsibility should always be considered against the nature and context of the publication and the resources of the publisher, rather than these points merely counted among all the other factors. We will be suggesting amendments to probe these matters. With such amendment, Clause 4 will help provide a complex responsible publication defence but will still not be an effective public interest defence for a wider section of society, nor provide the opportunity for a prompt and effective remedy for someone who feels ill-treated or damaged by a public interest publication. We therefore believe that the insertion of a new public interest defence as set out below would both protect genuine public interest publication and, in our formulation, would encourage reasonable explanation or clarification to be published when authors get something wrong.

New Clause to be inserted before clause 41 (4A) PUBLICATION ON MATTERS OF PUBLIC INTEREST (1) The publication of a statement which is, or forms part of, a statement on a matter of public interest2 is privileged3 unless the publication is shown to be made with malice4. (2) In defamation proceedings in respect of a publication under subsection (1) there is no defence under this section if the claimant shows that the defendant5 (a) was requested by him to publish in a suitable manner a reasonable letter or statement by way of explanation or contradiction (the response)6, and (b) refused or neglected to do so. (3) For the purpose of subsection 2, in a suitable manner means in the same manner as the publication complained of or in a manner that is adequate and reasonable in the circumstances, having particular

regard to a) the need for the response to have equal prominence as the publication complained of b) the promptness of the publication of the response7 and c) where appropriate, the extent and promptness of the removal or clarification of, or correction to, the publication complained of8
(4) Nothing in this section shall be construed (a) as protecting the publication of matter the publication of which is prohibited by law, or

This is the best place for it to go as it has precedence over the Clause 4 Reynolds defence, since if it used by the defendant they will not need the original defence. 2 This is drawn from the wording of clause 4(1)(a) of the bill http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0005/cbill_201220130005_en_2.htm#pb2-l1g4 3 The defence provides qualified privilege with a right of reply. 4 (For the purposes of subsection (1) malice shall be taken to mean, as in the common law,a) the absence of an honest belief in the truth of the statement complained of b) reckless disregard to its truth c) the absence of an honest belief in any statement of opinion complained of d) the existence of a dominant improper motive for the publication of the statement complained of) This wording is drawn from the wording of section 15 of the 1996 Act The use of the term response is considered better than the term correction here. 7 Subsections (3)a and (3)b above are additional to statutory QP under section 15 of the 1996 Act, and capture the public mood around the importance of fairness in corrections. There is little or no case law where section 15 privilege has been challenged by a failure to meet the requirements of the reasonableness of the explanation or contradiction. 8 This provision is to capture the internet basis of most publication and gives credit to the removal of, correction of, or attaching of a Loutchanskytype notice to, the original publication. Taken together, Subsections 3(a), (b) and (c) represent as full as possible correction of the public record where facts are acknowledged to be false and defamatory, and otherwise an acknowledgement of the contested nature of the matter on the public record when the facts or opinions stated are acknowledged to be defamatory and contestable.
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(b) as limiting [or abridging] any privilege subsisting apart from this section9.

This wording is taken from Clause 6 of the bill [and section 15 of the 1996 Act]

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Clause 5 Operators of websites

(1) This section applies where an action for defamation is brought against the operator of a website in respect of a statement posted on the website. (2) It is a defence for the operator to show that it was not the operator who posted the statement on the website. (3) The defence is defeated if the claimant shows that (a) it was not possible for the claimant to identify the person who posted the statement, (b) the claimant gave the operator a notice of complaint in relation to the statement, and (c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations. (4) A notice of complaint is a notice which (a) specifies the complainants name, (b) sets out the statement concerned and explains why it is defamatory of the complainant, (c) specifies where on the website the statement was posted, and (d) contains such other information as may be specified in regulations. (5) Regulations may (a) make provision as to the action required to be taken by an operator of a website in response to a notice of complaint (which may in particular include action relating to the identity or contact details of the person who posted the statement and action relating to its removal); (b) make provision specifying a time limit for the taking of any such action; (c) make provision conferring on the court a discretion to treat action taken after the expiry of a time limit as having been taken before the expiry; (d) make any other provision for the purposes of this section. (6) Regulations under this section (a)may make different provision for different circumstances; (b)are to be made by statutory instrument. (7) A statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament. (8) In this section regulations means regulations made by the Secretary of State.
The internet is the front line for free speech today. However, under the current law internet intermediaries (including ISPs, search engines, web hosts, social networks and discussion boards) are not adequately protected. Some entities (or rather entities when they are performing certain functions) such as search engines, mere conduits and cachers are, under existing EU law (expressed in the UK by the E-commerce regulations), essentially exempt from liability. This has been confirmed in the recent case law on the basis of the E-commerce regulations, and also because they are not publishers, under common law principles. However this is not clear in existing statute, like the 1996 Defamation Act. The opportunity should be taken to make clear in statute that entities when performing these functions are never liable. Other intermediaries such as those who host user-generated content or blogs are forms of secondary publisher (some are the online version of bookshops, providing a platform but having no relationship at all to content), and do not have the information or resources to check the material against claims. They should not be liable to the same degree as primary publishers such as authors or editors. However currently they are especially vulnerable to vexatious threats from claimants, for whom they are easier targets than the authors who may be willing and able to defend the publication. The problem this clause, and regulations made under it, need to address is that parties who were not responsible for composing, writing, editing or approving allegedly defamatory content may be sued for libel. -9-

Currently, when internet intermediaries are threatened with libel proceedings over content they are neither the author nor editor of, they are faced with the choice of removing the content irrespective of whether it is libellous or not, or choosing to defend a claim which may prove hugely expensive. This problem was recognised by the Law Commission: There is a strong case for reviewing the way that defamation law impacts on internet service providers. While actions against primary publishers are usually decided on their merits, the current law places secondary publishers under some pressure to remove material without considering whether it is in the public interest, or whether it is true. These pressures appear to bear particularly harshly on ISPs, whom claimants often see as tactical targets. There is a possible conflict between the pressure to remove material, even if true, and the emphasis placed upon freedom of expression under the European Convention of Human Rights. Although it is a legitimate goal of the law to protect the reputation of others, it is important to ask whether this goal can be achieved through other means. Law Commission: Defamation and the Internet, 2002. Para 1.12

The approach that is needed is:

firstly to make clear that action should be taken against the authors of the statement complained of before any liability can attach to those who are merely hosting the content. secondly that liability for a web host should never flow merely from knowledge (via a complaint) that something is defamatory, but that liability should occur when the web host has knowledge that something that is unlawful (libellous) has been published and fails, or chooses not, to take it down. That distinction requires a court to have expressed a preliminary view. This is the position established by recent case law (Davison vs Habeeb and Google inc, and Tamiz vs Google inc) based in the E-Commerce Directive (which talks of unlawful words) and not the wording of section 1 the 1996 Defamation (which talks about defamatory words) The first of these requirements is included in the clause, while the second is not included and by using the language (defamatory) of the 1996 Act, would risk reversing the position established in case law or at least retaining the contradiction.

Clause 5 needs to:

align English libel law with the later E-Commerce Directive and the associated UK E-Commerce Regulations which is a far more effective protection of innocent intermediaries ensure that web-hosts are only liable if they do not take down undefended words which have been found by a court even on a cursory examination - to be libellous not merely alleged to be defamatory. This requires a cheap and fast court-based filter of complaints ensure that the protection for web hosts is not lost by them post-moderating user content, which is good practice and should be encouraged ensure that any new scheme does not cut across the existing voluntary scheme where obvious libels (as with other breaches of terms of service of web services) can be removed expeditiously, through flag and alert reporting systems clarify that the presence of a bare link to libellous material is not in itself sufficient to import liability to the author ensure that the question of anonymous comment is dealt with in a matter that ensures that libellous comments, where no one comes forward to defend them, are likely to be taken down. But also allows the opportunity for a genuine whistle-blower who is seeking to remain anonymous to apply to the courts for protection to the website operator while the claimant pursues a 3rd party disclosure order (Norwich Pharmacal order) to obtain the details of the whistle-blower.

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Clause 6 Peer-reviewed statement in scientific or academic journal etc

(1) The publication of a statement in a scientific or academic journal is privileged if the following conditions are met.

(2) The first condition is that the statement relates to a scientific or academic matter. (3)The second condition is that before the statement was published in the journal an independent review of the statements scientific or academic merit was carried out by (a) the editor of the journal, and (b) one or more persons with expertise in the scientific or academic matter concerned. (4) Where the publication of a statement in a scientific or academic journal is privileged by virtue of subsection (1), the publication in the same journal of any assessment of the statements scientific or academic merit is also privileged if (a) the assessment was written by one or more of the persons who carried out the independent review of the statement; and (b) the assessment was written in the course of that review. (5) Where the publication of a statement or assessment is privileged by virtue of this section, the publication of a fair and accurate copy of, extract from or summary of the statement or assessment is also privileged. (6) A publication is not privileged by virtue of this section if it is shown to be made with malice. (7) Nothing in this section is to be construed (a) as protecting the publication of matter the publication of which is prohibited by law; (b) as limiting any privilege subsisting apart from this section. (8) The reference in subsection (3)(a) to the editor of the journal is to be read, in the case of a journal with more than one editor, as a reference to the editor or editors who were responsible for deciding to publish the statement concerned.
Scientists should be free to have open discussions about scientific research without the threat of being sued for libel. This clause would give clear protection to peer-reviewed academic publications and is therefore welcome. Scientific publishers frequently edit or exclude material because of the threat of libel proceedings. We welcome the inclusion of subsection 2 (the need for the statement to relate to a scientific or academic matter), and subsection 6 (the defence being lost by malice) as this reduces the potential for abuse of this clause. However, this would not protect scientists or academics speaking out in the public sphere such as newspapers, blogs or at public protests. None of the most unjust cases like that of Simon Singh. Peter Wilmshurst, and Ben Goldacre would have benefited from this defence. Hence the importance we place on the insertion of a true public interest defence as outlined in Clause 4.

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Clause 7 Reports etc protected by privilege

(1) For subsection (3) of section 14 of the Defamation Act 1996 (reports of court proceedings absolutely privileged) substitute (3) This section applies to (a) any court in the United Kingdom; (b) any court established under the law of a country or territory outside the United Kingdom; (c) any international court or tribunal established by the Security Council of the United Nations or by an international agreement; and in paragraphs (a) and (b) court includes any tribunal or body exercising the judicial power of the State. (2) In subsection (3) of section 15 of that Act (qualified privilege) for public concern substitute public interest. (3) Schedule 1 to that Act (qualified privilege) is amended as follows. (4) For paragraphs 9 and 10 substitute 9 (1) A fair and accurate copy of, extract from or summary of a notice or other matter issued for the information of the public by or on behalf of (a) a legislature or government anywhere in the world; (b) an authority anywhere in the world performing governmental functions; (c) an international organisation or international conference. (2) In this paragraph governmental functions includes police functions. 10 A fair and accurate copy of, extract from or summary of a document made available by a court anywhere in the world, or by a judge or officer of such a court. (5) After paragraph 11 insert 11A A fair and accurate report of proceedings at a press conference held anywhere in the world for the discussion of a matter of public interest. (6) In paragraph 12 (report of proceedings at public meetings) (a) in sub-paragraph (1) for in a member State substitute anywhere in the world; (b) in sub-paragraph (2) for public concern substitute public interest. (7) In paragraph 13 (report of proceedings at meetings of public company) (a) in sub-paragraph (1), for UK public company substitute listed company; (b) for sub-paragraphs (2) to (5) substitute (2) A fair and accurate copy of, extract from or summary of any document circulated to members of a listed company (a) by or with the authority of the board of directors of the company, (b) by the auditors of the company, or (c) by any member of the company in pursuance of a right conferred by any statutory provision. (3) A fair and accurate copy of, extract from or summary of any document circulated to members of a listed company which relates to the appointment, resignation, retirement or dismissal of directors of the company. (4) In this paragraph listed company has the same meaning as in Part 12 of the Corporation Tax Act 2009 (see section 1005 of that Act). (8) In paragraph 14 (report of finding or decision of certain kinds of associations) in the words before paragraph (a), for in the United Kingdom or another member State substitute anywhere in the world. (9) After paragraph 14 insert 14A A fair and accurate (a) report of proceedings of a scientific or academic conference held anywhere in the world, or
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(b) copy of, extract from or summary of matter published by such a conference. (10) For paragraph 15 (report of statements etc by a person designated by the Lord Chancellor for the purposes of the paragraph) substitute 15 (1) A fair and accurate report or summary of, copy of or extract from, any adjudication, report, statement or notice issued by a body, officer or other person designated for the purposes of this paragraph by order of the Lord Chancellor. (2) An order under this paragraph shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. (11) For paragraphs 16 and 17 (general provision) substitute 16 In this Schedule court includes (a) any tribunal or body established under the law of any country or territory exercising the judicial power of the State; (b) any international tribunal established by the Security Council of the United Nations or by an international agreement; (c) any international tribunal deciding matters in dispute between States; international conference means a conference attended by representatives of two or more governments; international organisation means an organisation of which two or more governments are members, and includes any committee or other subordinate body of such an organisation; legislature includes a local legislature; and member State includes any European dependent territory of a member State.

The public has a legitimate interest in reading reports of court cases, legislative processes, public company meetings, and scientific or academic conferences. It is in the public interest that people can give an accurate report of these proceedings without risking a libel claim. This clause is therefore welcome. Subsection 5 however recognises that press conferences ought to attract qualified privilege, but does not explicitly recognise that reports based on press releases published or circulated at a press conference should attract the same privilege. This was recognised in Turkington and Others (Practising As Mccartan Turkington Breen) v. Times Newspapers Limited (Northern Ireland) [2001] 2 AC 277, and ought to be included in this clause, which is designed to give as complete a picture as possible of circumstances now accepted to attract qualified privilege. In recent years, there have been a number of defamation actions relating to the function of local government. This clause should explicitly include the reporting of local government meetings.

Clause 7 needs to:

Expressly recognise that reports of papers published or circulated at proceedings listed in Clause 7 (5) attract the same qualified privilege as the reports of the proceedings themselves In either the Bill itself, or the explanatory notes, government functions should be stated to include local government functions.

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Clause 8 Single publication rule

(1) This section applies if a person (a) publishes a statement to the public (the first publication), and (b) subsequently publishes (whether or not to the public) that statement or a statement which is substantially the same. (2) In subsection (1) publication to the public includes publication to a section of the public. (3) For the purposes of section 4A of the Limitation Act 1980 (time limit for actions for defamation etc) any cause of action against the person for defamation in respect of the subsequent publication is to be treated as having accrued on the date of the first publication. (4) This section does not apply in relation to the subsequent publication if the manner of that publication is materially different from the manner of the first publication. (5) In determining whether the manner of a subsequent publication is materially different from the manner of the first publication, the matters to which the court may have regard include (amongst other matters) (a) the level of prominence that a statement is given; (b) the extent of the subsequent publication. (6) Where this section applies (a) it does not affect the courts discretion under section 32A of the Limitation Act 1980 (discretionary exclusion of time limit for actions for defamation etc), and (b) the reference in subsection (1)(a) of that section to the operation of section 4A of that Act is a reference to the operation of section 4A together with this section.
The current law recognises each instance of publication as a distinct case of libel that a claimant may take legal action over. It gives claimants the right to sue over each copy of newspaper containing a libellous statement which is sold and every time a website containing a libellous statement is accessed both examples of publication. This is described as the multiple publication rule and pre-dates the light bulb. Importantly, the limitation period (the time in which a potential claimant has to commence a claim) starts anew with instance of publication. This is outdated, particular in the age of the internet and digital publication, where documents can be re-published with a single click on a computer or smart phone years after originally made available to the public through online archives. Clause 8 goes some way to addressing the problems created by this multiple publication rule, by stopping claimants from trying to effectively circumvent the limitation laws by relying on a later publication as the date from which the limitation period runs. There is no protection, however, in the clause for a third party who re-publishes a defamatory statement originally made by somebody else. It is unnecessary to limit the new single publication rule to the original author. The clause as drafted specifically recognises that section 32A of the Limitation Act 1980 would still subsist; allowing judges the ability to proceed a case outside the one year limitation period where it is equitable to do so. We are also concerned about the position of open access online scholarly publishing and archives. It is now a common practice for journal content that is published initially on a subscription basis to be made publicly available after a period of time often more than a year. This is a desirable practice as it enables scientific and medical advances to be accessible to developing countries that cannot afford subscriptions, although with Clause 8 as it stands this accessibility may be at risk of being considered materially different. Likewise the compilation of archives from different sources may be considered a materially different form of publication. - 14 continued >

Clause 8 needs to:

Recognise that republication of the same material by a third party is not a new publication for the purposes of libel Ensure that not materially different is defined to exclude the creation of archives, or the allowing public access to information previously only available on subscription. To deliver this a simple clause could be inserted:

5 (A) Publication shall not be deemed to be materially different merely by virtue of the publication on the internet of academic or scientific research papers or journals originally published in paper form and made available by subscription the creation of an archive [defined in the explanatory notes]

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Clause 9 Action against a person not domiciled in the UK or a Member State etc
(1) This section applies to an action for defamation against a person who is not domiciled (a) in the United Kingdom; (b) in another Member State; or (c) in a state which is for the time being a contracting party to the Lugano Convention. (2) A court does not have jurisdiction to hear and determine an action to which this section applies 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. (3) The references in subsection (2) to the statement complained of include references to any statement which conveys the same, or substantially the same, imputation as the statement complained of. (4) For the purposes of this section (a) a person is domiciled in the United Kingdom or in another Member State if the person is domiciled there for the purposes of the Brussels Regulation; (b) a person is domiciled in a state which is a contracting party to the Lugano Convention if the person is domiciled in the state for the purposes of that Convention. (5) In this section the Brussels Regulation means Council Regulation (EC) No 44/2001 of 22nd December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, as amended from time to time and as applied by the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ No L299 16.11.2005 at p62); the Lugano Convention means the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, between the European Community and the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation and the Kingdom of Denmark signed on behalf of the European Community on 30th October 2007.
England and Wales has libel laws and procedures which make it more favourable for people to sue in this jurisdiction, even if the extent of the publication in this jurisdiction is minor compared to the extent of publication elsewhere, in cases where the reputation of the claimant is mainly abroad. This enables overseas claimants to use the threat of libel proceedings to intimidate publishers into unjustified self-censorship and into taking down material from the internet. We support this clause, therefore, which deals with half of the problem - as it tackles the problem of non-EU defendants being inappropriately sued in the High Court - as occurred in the Rachel Ehrenfeld case, the US academic sued in London by Khalid Bin Mahfouz, for a book almost entirely sold in the US. The clause does however only apply to non-EU defendants and provides no restrictions on the ability of claimants to sue in England and Wales where the defendant is domiciled, or part-domiciled, in the EU. We are concerned that this clause would not have protected cardiologist Dr Peter Wilmshurst from a prolonged and potentially ruinous libel action from a US corporation for remarks made to a Canadian journalist in the USA and which appeared on a Canadian website with little readership in this country. This problem is solved by the inclusion of: Subsection 13 (2) of Lord Lesters Bill in a clause requiring the court to strike out claims where there has been no real of substantial tort in this jurisdiction, as we set out above in discussion of clause 1. Lord Lesters clause states:

No harmful event is to be regarded as having occurred in relation to the claimant unless the publication in the jurisdiction can reasonably be regarded as having caused substantial harm to the claimants reputation having regard to the extent of publication elsewhere.

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Clause 10 Action against a person who was not the author, editor etc
(1) A court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher. (2) In this section author, editor and publisher have the same meaning as in section 1 of the Defamation Act 1996.
Parties who are not responsible for content are often threatened with libel proceedings for distributing defamatory material or enabling it to be published. Examples given by the Booksellers Association in their written evidence to the Joint Select Committee on the Draft Defamation Bill (EV 11) included David Irving suing individual branch managers of Waterstones for stocking the book Denying the Holocaust: The Growing Assault on Truth and Memory and Neil Hamiltons solicitors threatening a number of booksellers with proceedings for libel if they stocked the book Sleaze: The Corruption of Parliament. As highlighted in relation to Clause 5 above, internet intermediaries also face libel threats over content they exercise no control over. Clause 10 aims to ensure that the author, editor or publisher of the material concerned is the defendant in any libel proceedings unless it is not reasonably practicable for a claimant to take an action against one of these parties. We welcome the aim of this clause; how it will work in practice will depend on the interpretation of the courts as to whether it is reasonably practicable to sue the author, editor or publisher.

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Clause 11 Trial to be without jury unless the court orders otherwise

(1) In section 69(1) of the Senior Courts Act 1981 (certain actions in the Queens Bench Division to be tried with a jury unless the trial requires prolonged examination of documents etc) in paragraph (b) omit libel, slander,. (2) In section 66(3) of the County Courts Act 1984 (certain actions in the county court to be tried with a jury unless the trial requires prolonged examination of documents etc) in paragraph (b) omit libel, slander,.
Defamation claims can be hugely expensive. In a recent survey by the Publishers Association its members claimed that defending a libel case that reached the courts cost an average of 1.33m (Appendix I to the Publishers Association submission to both the Ministry of Justice consultation on the Draft Defamation Bill). One of the procedural issues that can lead to high costs is the current presumption in favour of a jury. While there is still the likelihood of having a jury in a case, it can be difficult to predict the outcome, which makes it harder to reach a settlement. Recognition of this fact has led most trials to take place before a judge alone. In 2010, there were no defamation jury trials, and only 3 in both 2008 and 2009. Defamation jury trials are an anomaly within civil litigation. The single meaning rule will apply only a single meaning to defamatory statements. Judges can determine the meaning of a statement as a preliminary issue if there is not going to be a jury, but if there is still the potential for a jury to hear the case, the judge will only decide a range of capable meanings. This affects most areas of case preparation and may mean that the case needs to be argued on several fronts. It drives up costs even though in all likelihood the case will not be heard by a jury. Removing the presumption that a defamation trial will be heard by a jury unless the court direct otherwise will introduce certainty in to proceedings and reduce costs.

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Clause 12 Power of court to order a summary of its judgment to be published

(1) Where a court gives judgment for the claimant in an action for defamation the court may order the defendant to publish a summary of the judgment. (2) The wording of any summary and the time, manner, form and place of its publication are to be for the parties to agree. (3) If the parties cannot agree on the wording, the wording is to be settled by the court. (4) If the parties cannot agree on the time, manner, form or place of publication, the court may give such directions as to those matters as it considers reasonable and practicable in the circumstances. (5) This section does not apply where the court gives judgment for the claimant under section 8(3) of the Defamation Act 1996 (summary disposal of claims).
Evidence given to the select committee on the draft defamation bill suggested that some people believe the remedies available in the event of a successful defamation claim are inadequate. This is because any loss caused to the claimant cannot usually be measured in financial terms, and financial remedies are what the civil court usually relies on as recompense. The ability of the court to order that the defendant publish a summary of its judgment is a practical addition to the powers of the court for defamation claims. We welcome the fact that the clause does not attempt to force defendants to apologise, which could be in contradiction to ECHR Article 10 rights.

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Clause 13 Special damage

(1) The Slander of Women Act 1891 is repealed. (2) The publication of a statement that conveys the imputation that a person has a contagious or infectious disease does not give rise to a cause of action for slander unless the publication causes the person special damage.
The Slander of Women Act 1891 and the concept that a person should be able to sue for slander in relation to certain allegations (set out at subsection 2 above) irrespective of whether the publication causes the person special loss are outdated. This clause is therefore welcome.

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Additional Clauses Needed: Clause 14 Corporations

The Defamation Bill does not include any measures to restrict corporations and other non-natural persons use of the libel laws, an issue raised by MPs at the second reading of the Defamation Bill. There is a problem with the inequality of arms between wealthy and powerful corporate claimants and defendants which allows corporations to use the threat of a costly libel action and lengthy proceedings to close down criticism of their products or practices. The law as it stands gives even more power to those who already hold the most power in society, and stifles criticism or investigation of corporations and other organisations. Non-natural persons do not have Article 8 rights in reputation, as they do not have feelings. So while they have some rights to reputation under Article 10 (2) the remedy does not need to be the same as those claimants with article 8 rights. This has been made clear in ECHR case law. Non-natural persons also have other remedies to respond to criticism: using existing malicious falsehood legislation libel actions by company directors (or equivalent) in their own name (especially relevant for small businesses) where the defamation causes serious reputational harm a free-standing remedy of obtaining a declaration of falsity could be made available other remedies have recently been made available, such as the Business Protection from Misleading Marketing Regulations 2008 (BPRs) which deal with false advertising claims amongst other issues. In addition, the Derbyshire principle establishes that public bodies cannot sue in libel because of the importance of those who provide public services being open to criticism. However, while Derbyshire does provide some protection for those making criticisms of government bodies, the same is not true for private providers of public services who can still deter criticism by threatening a libel action. We support the Derbyshire principle being brought into statute alongside a clause on non-natural persons, and made applicable to all non-natural persons who perform a public function when the allegedly defamatory statement relates to that function. There is widespread popular support for restricting corporations from using the libel law.

What is needed:
We believe that all non-natural persons suing in libel should have to show actual (or likely) serious financial harm and show malice, dishonesty or reckless disregard for the truth.

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Additional Clauses Needed: Alternative Dispute Resolution

Reform of the substantive law of libel is critically important to protect free speech and debate, as we have demonstrated. In addition, action must be taken to reduce the potential cost of libel actions through procedural reforms and changes to the funding arrangements for defamation disputes. Libel cases in England and Wales cost over 100 times the European average, take too long to resolve and often result in outcomes with which neither party is happy. There are alternative methods of dispute resolution which can help parties resolve disputes in a timely, cost-effective and fair manner. Alongside strong encouragement to promote their use, there needs to be reform of the court process by which a claim for defamation can be made or defended. Index on Censorship and English PEN made detailed recommendations on the changes needed in the Alternative Libel Project (http://goo.gl/ofvee). In summary, these are: Increased use of mediation and arbitration The introduction of Early Neutral Evaluation Costs penalties for failing to use these three forms of alternative dispute resolution The introduction of a hearing to determine the meaning of an alleged defamatory statement, with fixed limits on evidence, argument and costs More robust case management A change in costs rules including protection for a party from having to pay the other sides costs in the event of losing, and the introduction of an overall costs cap. With the exception of some of the rules on costs, these changes do not need to be made by primary legislation: they can be made through changes to the Civil Procedure Rules. In its report on the draft Defamation Bill, the Select Committee said (at para 90) it did not believe that the proposals the Government has brought forward so far will, in themselves, deliver the improvements to libel proceedings so as to make them genuinely within the grasp of the ordinary citizen. Emphasising the need for procedural change, the committee urged (at para 91) the Government to prepare a document setting out the rule changes required to implement the procedural changes the committee has recommended, to be published at the same time as the defamation bill. In relation to costs, in the 3 reading of the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) in the House of Lords, the Right Honourable Lord McNally gave a commitment to ensuring there will be adequate powers, either under existing law or the future legislation, to create any cost changes that are needed to secure a level playing field and equality of arms (Lords Hansard, 27 March 2012, column 1332, in discussion between Lords McNally and Lester). The Defamation Bill, as drafted, does not contain measures which will provide for this level playing field.
rd

What needs to happen:

The Government should publish a document setting out its intended procedural rule changes as requested by the Joint Select Committee on the draft Defamation Bill. Additional clauses should be added to the Defamation Bill in relation to costs, to achieve equality of arms the Government has stated is its intention.

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About the Libel Reform Campaign

Freedom to criticise and question in strong terms and without malice is the cornerstone of argument and debate, whether in scholarly journals, on websites, or in newspapers. The libel laws of England and Wales discourage argument and debate and merely encourage the use of the High Court to silence critics. They are damaging freedom of expression and the open exchange of information not just in England and Wales but worldwide. The Libel Reform Campaign was founded by Index on Censorship, English PEN and Sense About Science in December 2009 to obtain major changes in the English libel laws. 60,000 individuals, 60 civic society organisations and hundreds of prominent individuals support the campaign. All three main political parties made a commitment to reform the libel laws in their 2010 general election manifestos and the coalition Government agreement included a pledge to reform the legislation. We are delighted that the Government has published the Defamation Bill. However, we are concerned that if the Defamation Bill is merely codification of current common (case) law, the Government is in danger of being seen to fail to deliver on its promises. Excellent work has been done by the House of Commons Culture, Media and Sport select committee, the Ministry of Justice working group and the cross party Joint Scrutiny Committee and in particular by Lord Lester of Herne Hill whose Private Members Bill led the way in framing new legislation.

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Contact

Dr Sle Lane Campaigns Manager, Sense About Science 020 7490 9590 / 07719 391814 or slane@senseaboutscience.org

Mike Harris Head of Advocacy, Index on Censorship 020 7324 2534 / 07974 838468 or mike@indexoncensorship.org

Robert Sharp Head of Campaigns & Communications, English PEN 020 7324 2538 / 07790420011 or robert@englishpen.org

www.libelreform.org

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