Following some years of vocal agitation by media organisations and interest groups, on 15 March 2011 the Ministry of Justice published its draft Defamation Bill, the first proposal for wholesale statutory reform of our libel laws since the Faulks Committee’s (aborted) proposal in 1972. The draft Bill is based in part on Lord Lester’s private member’s bill published in June 2010, but with some crucial differences, including, very sensibly, the absence of a restriction on a company’s right to sue. In this briefing, the authors critically analyse the substance of the draft Bill with suggestions for improving the Bill to ensure properly balanced reform.
Clause 1 reformulates the definition of ‘defamatory statement’ by introducing a threshold test of ‘substantial harm’:
‘A statement is not defamatory unless its publication has caused or is likely to cause substantial harm to the reputation of the claimant.’
It is unclear what this adds, if anything, to the current common law position. In Thornton v Telegraph Media Group Ltd , Tugendhat J found that, whatever definition of defamatory was adopted, ‘it must include a qualification or threshold of seriousness, so as to exclude trivial claims’. Furthermore, the jurisdiction in Dow Jones & Co Inc v Jameel  gives the court discretion to strike out trivial or frivolous claims as an abuse of process (on this basis at least ten were struck out last year).
In Cairns v Modi  Tugendhat J wisely held that the power was useful, but:
‘Must not be seen as an additional hurdle which claimants must overcome, increasing the complexity and cost of litigation, instead of reducing it.’
Given that the burden will be on the claimant to prove the issue of ‘substantiality’, it seems likely that defendants will seek to mount tactical Clause 1 challenges, however serious the libel and the potential reputational damage, to deter claimants from continuing. It would impose a burdensome evidence-gathering exercise on claimants, frontloading costs and leading to mini-trials, where the issue of substantiality would fall to be considered.1 Bringing a claim against a media corporation, all clout and deep pockets, is daunting enough without this additional hurdle.
Clause 2, hailed by the media as a ‘new’ public interest defence, is no such thing at all. It puts on statutory footing, in roughly equivalent terms, the current common law public interest defence. InReynolds v Times Newspapers Ltd & ors  the House of Lords authoritatively widened the scope of the common law defences to protect serious and high-quality investigative journalism, or, in the words of the Bill, ‘responsible publication on matter of public interest’. The flexibility of the common law allowed judges to develop and, over the years, refine a defence that protects any publisher (not just media organisations) even when publishing falsehoods, provided it took reasonable care in researching and verifying the story.
Clause 2 does extend the breadth of Reynolds in one important respect: it is intended to cover statements of opinion, which currently would have to rely on the protection only of the ‘honest comment’ defence (codified in Clause 4 of the Bill and sensibly renamed ‘honest opinion’). While honest comment requires the facts on which the opinion is based to be substantially true, this would allow misleading and unjustified opinions to be published, based on untrue facts if a defendant behaves ‘responsibly’ in publishing them.
Regrettably, the draft Bill removed one of the better elements of Lord Lester’s (generally worse) reformulation of Reynolds: a reference to a publisher’s compliance with relevant codes of conduct. The Ministry of Justice excludes such a provision, citing satellite litigation over the meaning of codes and the extent of compliance. There is no evidence that any such satellite litigation has been generated by s32 of the Data Protection Act 1998, which contains a public interest exemption to data protection rules with a similar regard to be had to relevant codes of conduct. Similarly, s12(4)(b) of the Human Rights Act 1998, which compels the court to consider ‘any relevant privacy code’ when considering granting relief that may affect freedom of expression in journalism, literature or art, has not generated any significant satellite litigation. As before, empirical evidence baldly contradicts the government’s stated rationale.
Clause 3 replaces the existing common law defence of justification and renames it (again sensibly) ‘truth’. This is a restatement of the common law defence of justification in all but name.
The aim of codification may be sound: to clarify and consolidate the current law to give it more certainty and make it more accessible. However, as Lord Hoffmann reflected when speaking on the second reading of Lord Lester’s prototype, codification will lead not to clarity, but to extensive (and expensive) satellite litigation over whether or not, and to what extent, Parliament intended to change things. Codification trades the flexibility of a common law approach for, in Desmond Browne QC’s phrase, ‘the straitjacket of legislation’.
Furthermore, to sweep away the bedrock of decided cases, which have developed organically over hundreds of years, would put libel litigants on uncertain ground once again. Given that current case law on justification will, according to the consultation paper, become guiding but not binding authorities where there is uncertainty in interpreting the statute, a period of considerable uncertainty is expected. Lawyers will argue over the old authorities, but with this novelty: they will no longer be able to advise clients whether and to what extent those authorities now apply. Is Lord Hoffmann not right when he says that sometimes ‘there is a case for leaving well alone’?
Clause 4, which replaces the existing fair and honest comment defence, is one of the more radical in the Bill. It broadly retains the structure of the existing defence. However, it removes the subjective element (save for the issue of malice). At present a defendant must demonstrate that they were aware, or had been aware, of the facts on which their comment was based. Under the proposed defence, they would only need to show that an honest person would have been justified in holding the opinion based on one or more facts or privileged statements. All they need to establish was that a fact ‘existed’ (which throws up something of an ontological conundrum) at the time the statement was published that would have justified an honest man holding the opinion. Thus an entirely ‘dishonest’ opinion (in the sense that it was based on untrue privileged or facts not at the time known to the holder of the opinion) may be justified as ‘honest’.
One can already imagine the endlessly proliferating stream of falsehoods as a defence is crafted that would allow a defendant to publish a defamatory opinion on another defamatory opinion, neither of which is based on fact.
Clause 6 abolishes the ‘multiple publication rule’, which states that, each time a website is accessed, a new publication occurs, meaning that the limitation period for bringing a defamation claim in relation to an online statement will run for one year from the date of the first publication. It is intended to lessen the burden, or at least the worry, for archivists, including newspapers, publishing material online. However, there is little evidence that this has created any problems. Sensibly it would allow a claimant to sue in relation to subsequent publications of the defamatory statement if the manner of that publication is ‘materially different’ from the manner of the first publication.
Clause 7 seeks to abolish something of a canard in discussions of English libel law: ‘libel tourism’. The inclusion of this is based on a caricature of the law – propagated by certain politicians and the media – which sees dozens of foreign claimants queuing up to bring their claims in the High Court.2 In 2010 there was a grand total of one case (out of 83) involving a foreign (non-EU/Lugano) claimant and defendant. In 2009 there were zero. It is an extravagant waste of legislators’ time to be debating the nuances of this, when the law of abuse already gives sufficient protection.
Clause 8 abolishes the presumption in favour of trial by jury. As there have been no libel jury trials in the past 20 months, and the court retains discretion to order a jury trial, this may be of more theoretical than practical concern.
Finally, the draft Bill left out Lord Lester’s exclusion of corporate entities from bringing a claim for defamation. This is laudable for several reasons. First, because of their importance to the economy, there is a vital public interest in companies being able to protect their reputations. A defamatory allegation can do incalculable reputational harm, not all of which is financial: the erosion of employee morale, an inability to attract future employees and so forth. Secondly, financial harm may fall outside that which is ‘reasonably foreseeable’ and therefore recoverable in damages in a claim for defamation: damage to commercial relationships with customers, banks and potential business partners.
The proposal imagines an unrealistic world where the publishing of a libel is neatly reflected on a company’s balance sheet, and ignores the fact that harm may be intangible and unquantifiable. The exclusion of corporate bodies from the libel courts would allow large companies to keep fledgling competitors out of the marketplace with no more than the sting of false words. Prohibitions in relation to certain forms of comparative advertising on their own are wholly insufficient in protecting companies facing attack from competitors. Equally, the law of malicious falsehood has such a high threshold, in the form of having to prove malice, that for all practical purposes it is unlikely to assist corporate claimants in such circumstances.
Despite the old adage that London is a ‘town called Sue’, English libel law lacks the proper judicial machinery for dealing (swiftly and rationally) with the concerns of a victim of a defamatory publication. There is a great and long-recognised social value in protecting individuals and organisations from false statements that adversely affect their reputations. It is, therefore, regrettable, that the draft Bill primarily addresses the defence regime, and then with only limited success. In the consultation paper the Ministry of Justice half admits defeat:
‘There are clearly limits on the extent to which any statutory provisions could provide clarity and certainty in what is a complex area of the law.’
To attempt a codification of the defences for the sake of clarity and certainty, which, on the empirical evidence, it seems unlikely to achieve, and jettison any attempts to deal with the aspects that require real radical reform seems an attempt not worth the making.
The more pressing areas for overhaul are: costs (Jackson LJ has been reviewing the civil litigation costs regime), procedure, and, above all, the most striking absence from the Bill – remedies. The remedies available – injunctions and damages – provide an imperfect mechanism for achieving vindication for the defamed. An expeditious correction and apology are more desirable for most claimants than fighting a protracted battle for an award of damages and a final injunction. An overhaul of the remedies that brought in mandatory discursive remedies – declarations of falsity, right to reply, summaries of adjudications, or apologies – as well as pre-publication injunctions would bring truly just and better balanced reform.
- Despite the consultation paper’s stated aims of certainty, clarity and costs reduction, there is evidence, as Tugendhat J recognised in Cairns, that such provisions lead to costs-inflating interlocutory skirmishes: exactly that happened with the introduction in 1994 of the judicial power to strike out pleaded meanings (now codified in Civil Procedure Rules, Part 53 PD 4.1), also intended to lead to certainty, clarity and costs reduction, but bringing about their opposites.
- See, for example, Nick Clegg’s article in the Guardian on the day the draft Bill was published, everything in which was either wrong or misleading.