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Eight tips of what the draft defamation bill could mean for libel cases

Following the recent draft defamation bill being published by the Government, digital media lawyer Steve Kuncewicz offers his top tips on what the proposed changes could mean for new and existing cases.

The bill, published by justice secretary Kenneth Clarke, introduces new measures for England and Wales which aim to support free speech, enable people to protect their reputation and stop unreasonable threats of being sued for libel.

Steve Kuncewicz, digital media lawyer at HBJ Gateley Wareing in Manchester, picked through the bill for The Drum, offering his top tips on what the proposed changes could mean for new and existing cases.

1) A new requirement for Claimants to show that a statement has caused them “substantial harm” – should lead to weaker cases being more easily weeded out of court lists. Businesses may find it much harder to protect their reputations without detailed forensic evidence.

2) A new defence of “responsible publication on matters of public interest” – would set out in legislation the requirements to be satisfied before the defence could be run, clarifying what has for years been a complicated and very specific defence which is only usually relied upon by Journalists.

The new proposals would see the court adopt a more flexible approach and would allow other third parties to make use of the defence. The new proposals may well mean that similar cases would be fewer and far between and that anyone seeking to challenge current theory could do so without the threat of a libel claim.

3) A new defence of “Truth” – It’s long been the case, under the defence of Justification, that if a comment is true, then it can’t be defamatory. The Bill replaces a complex defence based on decades of case law with a clearer definition – it will be a defence to show that the imputation conveyed by the statement is “substantially true”.

4) A new defence of “Honest Opinion” – the new defence would protect statements of opinion (rather than fact) made on a matter of public interest where an honest person could have come to the same conclusion on the basis of the available facts when the statement was made.

5) Privilege – Certain situations are already recognised as being so important to the public interest that suing on the basis of any statement made during them is prohibited on the basis of “absolute privilege”, such as Parliamentary or Court proceedings. The Bill proposes to extend the situations covered by absolute privilege to include fair and accurate reports of privileged proceedings, which is very sensible.

6) A “single publication rule” – Under the current law, each publication of a defamatory statement allows a Claimant to sue in separate proceedings.

The Bill proposes that defamatory material can only be sued on for a year after the date upon which it was first published, no matter how long it stays on a site. However, if the material is then re-published by a different site or in a different medium, a Claimant will be able to sue even if limitation has expired, as well as if it has been published in a more prominent way after first making its way onto a site – on a homepage rather than a news page buried under several links.

This is a very sensible change to suit the Internet and Social Media age, but the Bill contains no guidance on situations where older material gains a second life and new exposure through social networks such as Facebook or Twitter, failing to deal with the issue of who would be responsible for the new found attention. Tweets may link to older material, but may be taken as re-publications in a different medium.

7) Libel Tourism – Much of the criticism of the current system relates to “libel tourism”, where wealthy Claimants based outside the UK or EU sue here to take advantage of higher damages and a presumption of damage. Questions remain over how much of a problem libel tourism actually is, even if US lawmakers remain outraged by it and how the rules will be applied in practice; the Bill contains very little guidance on the point.

8) Removal of an automatic right to Trial by Jury – Libel cases tend to be lengthy and expensive. The new rules would see Jury Trials becoming an option only where necessary in the interests of Justice. Again, this is very sensible but in the wake of the “Twitter Joke Trial”, many will ask whether the majority of Judges will truly appreciate the impact of technology on modern-day communication; most Judges still allegedly don’t “get” Facebook or Twitter.

In summary, the Bill answers several very important questions but raises a whole set of new ones. The hotly contested issue of whether businesses should be able to sue defamation in the first place has been ignored, probably to allay the fears of corporate claimants, even if they will now need to show “substantial harm” before doing so.

Even though it has not become law just yet, the Bill is a very clear indicator of the likely future of Defamation Law in the UK and provides a very useful set of issues that can be used immediately to prepare for a more sensible relationship between the Law and the Media.