The Defamation Bill
The defamation bill of Lord Lester of Herne Hill, QC (“the Bill”) was published on the 27 May 2010. The press release to the bill states that the bill “seeks to reduce the chilling effect on freedom of expression and recourse to self censorship that results from the vagueness and uncertainty of the present law. It also aims to encourage the free exchange of ideas and information, whilst providing an effective and proportionate remedy to anyone whose reputation is unfairly damaged”.
The Government’s draft Bill on libel reform will be brought forward early 2012 for pre-legislative inquiry. The likelihood is that a Bill will be included in the 2011-12 legislative programmes. From the perspective of natural law, libel laws are inherent with problems. Naturally an individual should have the right to express themselves freely on any subject of their choice. Equally there must be binding rules of kindness, respect and consideration for others when expressing yourself. A certain moral code not to take unfair advantage of others.
In the modern world these two natural laws become increasingly polarised. Legal positivism dictates that the law has to strike a balance between these two natural laws separate from moral and ethical values, so that there can be reasonable and positive guidance. This is an inherently very difficult task since these natural laws are moral and ethical in their nature. Society is becoming less and less kind, considerate or respectful. Disclosure of private and confidential information and the unfair disparagement of others is at epidemic proportions.
The legislature continues to try to strike this balance. Article 10 The European Convention on Human Rights December 1950 Article 10 of the European convention on Human Rights proclaims and defends the right to the freedom of expression: Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. And the exercise of these freedoms since it carries with duties and responsibilities, may be subject to such formalities and restrictions as are prescribed by law and necessary in a democratic society in the interest of ……… and for the protection of health and moral, for the protection of the reputation and rights of others.
Article 10 can be superseded by Article 8 which protects the right to private and family life. Secondly the right to freedom of expression (Art 10) is not an absolute right. Article 10 itself says there are restrictions imposed in exercising this right such as: when exercising freedom of expression violates the law or violates the protection of health and morals and violates the protection of others rights and others reputation.
The importance of protecting a reputation cannot be overstated. As Cassio says to Iago reputation survives mortality its loss is a loss of “the immortal part” and all that remains is “bestial”. However unfortunately it is very difficult for the claimant to disperse the notion that if there is tell tale evidence that an event is occurring then there is a probability that it is. In other words where there is smoke there is fire. As a result bringing a libel action is a very challenging process akin to using a raft and a paddle to navigate a rough river. You can succeed but you may also capsize on the way. Even if you manage to navigate the river without capsizing you will certainly have a substantial legal costs bill which may be much more than any damages you are awarded.
There are many more problems with our libel laws other than a hefty legal bill. The current UK seminal law on defamation is the Defamation Act 1996. The Bill is an attempt to update libel law both common law and the Defamation Act 1996.
1. There is the issue of “truth”. Currently Reynolds v. Times Newspapers Ltd  sets out the position concerning qualified privilege and defamatory statements in the public interest. This concerns a duty to publish matters which are clearly in the public interest even if they turn out to be wrong. The defence was successfully raised in this case to extend to mass media. Should the defence be focused on the quality of journalism or on truth? Clause 1 of the Bill would codify the Reynolds defence, but the issue of “truth” remains outstanding.
2. Clause 2 of the Bill renames “fair comment” as “honest opinion”. This has made a difference as it has made the common law position clearer. A comment may be fair based on all the circumstance of a case. However the defendant must be “honest”. Also there is no defence if there is evidence to show that an element that supports that opinion is doubtful or untrue then it cannot be said that the defendant did infact hold that opinion even if it can be said to be “fair”. This may not be the way the courts interpret “honest opinion” and this may prove expensive as the courts decide how it will be interpreted. The approach of the courts is to steer clear of any hint of an Orwellian ban on unpopular ideas or minority opinions. The Court will not be used as a tool for censorship by “vested interests” to silence criticism. In my view, this approach will remain but perhaps the idea of “honesty” will introduce a new element in favour of the claimant.
3. Clause 4 and 5 of the Bill rename “justification” as “truth” the same points apply here as above. The introduction of truth might introduce a new element. However what is truth still remains relative. A meaning of a set of circumstances may be true but the allegations may be false. In any event the defendant only needs to show that the allegations are substantially true even if some of the allegations are false.
4. Clause 9 of the Bill deals with responsibility for publication and sets down a new “take down defence” which codifies Godfrey v Demon Internet 1999. If someone is a facilitator then he has a defence against a claim unless the claimant can show that he had notice of the defamatory material and did not take it down. In the Demon case the judge found that Demon was clearly not a publisher within the meaning of S1(2) and 1(3) of the Act and could avail itself of the defence under S1(1) of the Act. But the judge found that Demon published the contents of the newsgroups within the common law meaning in that its activity was more than innocent as it chose to host the particular newsgroup on which the offending material was posted. According to the judge in the Demon case if you know about the defamation and you don’t take it down then you face an “insuperable difficulty” in any defence under S1(1) of the Act. In other words the S1(1) defence is not available to you once you have been served with a takedown notice of the defamatory material.
5. Clause 10 of the Bill would remove the so called rule of “multiple publications” derived from Duke of Brunswick 1849. Ever since the old case of Duke of Brunswick v. Harmer in 1849 which established the multiple publication rule, UK courts have repeatedly held that even where the defendant’s publication is distributed mainly in another jurisdiction, as long as it is downloaded by a number of readers in the UK then that is enough to constitute a separate actionable publication in the UK. This rule has caused lawyers for newspapers much discomfort as their clients keep archive information on the Internet. A new cause of action with its own limitation period arises every time material is downloaded however many years have passed since the original publication. Publication would now occur only on the first occasion that the material is made available to the public.
6. Clause 11 of the Bill would require corporations to prove that the publication “caused or is likely to cause substantial financial loss.” This creates substantial problems for small corporations or non- trading entities. “Is likely to cause” gives more flexibility.
7. Clause 12 of the Bill requires a mandatory strike out of a case if it has not caused or is unlikely to cause substantial harm to the reputation of the claimant. If a statement is merely poking fun then it cannot be said to cause substantial harm to reputation. This seems a sensible proposal as damage to reputation is the essence of defamation. At the moment there is a presumption of damage in English law. In Jameel (Yousef) v. Dow Jones & Co. Inc.  the court considered whether in practice the presumption of damage could be rebutted and whether it was contrary to Article 10. Whether a real and substantial tort had been committed. The defendants argued that since only 5 people had downloaded the publication in this jurisdiction that the claim should be struck out. Eady J declined to strike out the case. On appeal the court of appeal stayed the case as an abuse of process since the damage caused was minimal and the costs would be disproportionate. The presumption of damage was not rebuttable and was compatible with Article 10. In my view, this is an attempt at codification of the decision in the Jameel case.
8. Clause 13 of the Bill intends to deal with “libel tourism” if the same or similar words have been published outside the jurisdiction then “(2) no harmful event can be said to have occurred….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 the publication elsewhere.” In other words no claim can be brought unless the publication elsewhere damages the claimant’s reputation in the UK in a substantial way. This is a very welcome clarification and in my view is not problematic as some lawyers argue.
The Bill is a step in the right direction to much needed reform. It does fail however in addressing the important issue of the excessive cost of litigation especially for those individuals and smes who would like an affordable remedy to protect their reputation in the digital age.