Extreme makeover: England’s new defamation law
By Matthew Collins
Britain’s complicated and claimant-friendly defamation laws, honed in important respects in the Star Chamber, have rightly attracted worldwide criticism. In 2008, the New York State legislature condemned their deployment against American nationals as ‘libel terrorism’. In 2010, the US Congress passed a law with the express purpose of preventing British defamation judgments from being recognized and enforced in the land of the First Amendment.
The Defamation Act 2013, which comes into force in England and Wales on 1 January 2014, is thus an occasion for reflection. The culmination of years of lobbying, consultation, inquiries, and reports, the new law contains the most wide-ranging reforms that have ever been attempted to this vexed field. Generally speaking, although not uniformly, the changes are media friendly, tilting the balance towards greater protection for freedom of expression, and making it harder for claimants to bring actions. That a recalibration of the law towards freedom of expression was possible is remarkable: the prestige of the media, and its capacity to influence lawmakers, is at a low ebb in the wake of the revelations before the Leveson inquiry into the culture, practices, and ethics of the press.
The signature reform of the 2013 Act is to be found in section 1, which provides that defamation actions will no longer be permitted to proceed unless the claimant has suffered, or is likely to suffer, serious reputational harm or, in the case of bodies that trade for profit, serious financial loss. The reform may ultimately be of more symbolic than practical import. Courts had already, in recent years, developed and given effect to principles and procedures for weeding out trivial defamation claims. Nonetheless, the provision will serve to deter, and fortify courts in bringing to an end, defamation claims of marginal merit.
The most significant reform in the new law is likely to prove to be the new defence of honest opinion, which replaces the ancient common law defence of fair comment. The new defence is capable of protecting honestly expressed opinions—as opposed to assertions of fact—on any subject. The defence appears to be capable in some circumstances of protecting the expression of opinions that could have been held by an honest person on the basis of an incomplete or distorted view of the underlying facts, or on the basis of facts that were not known to the publisher and upon which the opinion was not based. It is in those respects a radical liberalization of the law. The new defence is a more important reform than the equally vaunted statutory codifications of the defence of truth, and of the Reynolds defence for false, but responsibly prepared, publications on matters of public interest.
There are a number of internet-friendly reforms in the new law. Courts will no longer have jurisdiction to hear and determine most defamation actions brought against secondary publishers of defamatory statements, including internet content hosts and service providers. There is a new defence for operators of websites in cases involving allegedly defamatory statements that have been posted by others online. Operators in such cases, including operators of news sites which allow reader comments and other online forums, will generally have an effective immunity from suit where they comply with tightly prescribed timeframes and act as a point of liaison between complainants and the anonymous posters of allegedly defamatory statements. A single publication rule has been introduced. Aggrieved persons will generally have only a year from the time when an offending statement first became publicly accessible to bring a claim. In most cases, they will no longer be able to sue in respect of statements first published long ago that remain accessible in online archives, even where new facts have since emerged that change the complexion of the statement.
There are other notable reforms. Inspired in part by the controversy that erupted when the British Chiropractic Association sued Simon Singh over an article in The Guardian, there is a new defence to protect defamatory statements appearing in scientific and academic articles in peer-reviewed journals, and in assessments of the merit of such articles. There are other liberalizations to the categories of report that attract absolute and qualified privilege.
The rather over-stated problem of libel tourism—the phenomenon of foreigners coming to London to take advantage of its defamation laws in cases with limited links to the jurisdiction—has been tackled by a provision that will operate, in most cases, to prevent actions from being brought in England and Wales against persons domiciled outside the European Economic Area.
Courts have been given new powers to order the publication of summaries of their judgments—despite protests of interference with editorial integrity—and to stop the secondary distribution of statements that have been found to be unlawful. The presumption in favour of trial by jury has been reversed.
Ultimately, the 2013 Act does little to simplify the complexity of this notoriously difficult branch of the law. As with reforms past, it mostly bolts new principles onto the rusting hulk of the existing structure of the centuries’ old cause of action: a structure that no-one, starting from scratch, would devise, but with which England and Wales, and the rest of the common law world, have been saddled. It contains many contestable questions of construction and apparently unintended consequences: more than enough to justify a new text on the English law of defamation. Disappointingly, the reforms have, with only minor exceptions, not been taken up in Scotland or Northern Ireland, thereby opening the door to the emergence of a cottage industry in intra-UK libel tourism in favour of Edinburgh and Belfast.
Nonetheless, the broad thrust and direction of the 2013 Act is to be welcomed. London may well cede its crown as the libel capital of the world to Sydney or Toronto. For that, the tireless promoters of reform—particular Liberal Democrat peers Lord Lester and Minister of State for Justice Lord McNally—deserve admiration and thanks.
Dr Matthew Collins SC is a Melbourne-based barrister, a Senior Fellow at the University of Melbourne, and the author of The Law of Defamation and the Internet (OUP: 2001, 2005, 2010). His new book, Collins on Defamation, the first comprehensive analysis of the implications of the Defamation Act 2013, will be published by OUP in March 2014.