Defamation Act 2013

What does the Act do?

The Act codified and consolidates large parts of existing case law and statute, specifically in relation to the defences of justification (now ‘truth’), journalistic qualified privilege (now ‘publication on a matter of public interest’) and fair comment (now ‘honest opinion’). The latter two defences have been modified and are not mere codifications. The Act also established a ‘serious harm’ threshold for bringing a defamation claim and introduces a single publication rule and a new defence for website operators. The Act also reverses the presumption regarding mode of trial - to judge rather than jury.

Section 1: Serious Harm

A statement is no longer defamatory unless a claimant can show that ‘... its publication had caused or is likely to cause serious harm to [his/her] reputation…’.

Section 2: The Defence of Truth

Section 2 is effectively a rebadging of the defence of ‘justification’, whereby ‘... 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’. Save for the wording, the old defence and new defence are effectively the same.

Section: The Defence of Honest Opinion

Section 3 abolishes the common law defence of fair comment and replaces it with the defence of honest opinion. Whereas with the defence of fair comment there was a requirement that the words complained of be on a matter of public interest, there is no reference to the public interest in the new Act. As with the previous law, a careful analysis of the words in question will be required to determine whether a statement is an expression of opinion or an assertion of fact.

Section 4: The Defence of Publication on a Matter of Public Interest

Section 4 abolishes the common law defence of ‘Reynolds qualified privilege’/journalistic qualified privilege and replaces it with the defence of publication on a matter of public interest. For the defence to succeed the statement, or part of it, must relate to a matter of public interest and the defendant must reasonably believe that publishing the statement is in the public interest. Whereas under the Reynolds defence, the defendant had to have acted responsibly/to the standard of responsible journalism, there is no express requirement in the Act. However, the explanatory notes to the Act indicate that the new defence is intended to reflect the common law as set out in Flood v Times Newspapers [2012] UKSC 11, in which Lord Mance stated that it would seldom be in the public interest “... to public material which has not been the subject of responsible journalistic enquiry and consideration”. By its very nature, the viability of any defence under section 4 will be fact-sensitive and sometimes difficult to assess.

Section 5: A Defence for Operators of Websites

Section 5 relates to online libel and will, in certain circumstances, provide website operators with complete immunity. Section 5(2) provides that it will be a defence for an operator of a website to show that it was not they who ‘posted’ the statement on the website. Section 5 is an extra shield for defendants, it is not a sword for claimants.

Section 6: Peer-reviewed Statements in Scientific or Academic Journals

Section 6 provides a niche category of the qualified privilege defence to those publishing in a scientific or academic journal, provided that the statement related to a scientific or academic matter which has been subjected to an independent review as to its scientific/academic merit, either by the editor of the journal or by one or more other experts in the matter concerned. Where the privilege is found, the publication of a fair and accurate copy, extract from or summary of the statement is also privileged. The defence is defeated if the claimant can show the statement has been made with malice. This section is aimed at preventing stifling of legitimate scientific debate.

Section 7: Court and Other Reports Protected by Privilege

Section 7 extends the scope of section 14 Defamation Act 1996, which provides for absolute privilege of fair and accurate reporting of legal proceedings in the UK, the ECHR and the ECJ, to cover courts worldwide and extends the scope of section 15 Defamation Act 1996, which provides for qualified privilege, to cover scientific, academic conferences and copies of various documents circulated to members of listed companies by the board, directors, auditors or other members.

Section 8: The Single Publication Rule

Section 8 effectively ends indefinite liability for internet publications. Under the previous law an online article was considered to have been re-published every time it was accessed by a reader. Section 8 provides that the limitation period of 12 months runs from the date of first publication to the public, notwithstanding subsequent publication of a statement which is substantially the same. This section will not apply where the publication is by a different person or the subsequent publication is materially different in manner from the first.

Section 9: Action Against Persons Not Domiciled in the UK or an EU/Lugano Convention State

Section 9 provides that in respect of prospective defendants resident outside of the EU, Norway, Switzerland or Denmark, the Court will not have jurisdiction to hear a libel claim unless it can be satisfied that England and Wales is clearly the most appropriate place to bring the action. The court will consider various factors including the extent of any publication in the jurisdiction (contrasted against any publication outside of the jurisdiction) and whether there has been any substantial damage to the claimants reputation within the jurisdiction. This section is aimed at preventing libel tourism whereby foreign claimants choose to sue in England to take advantage of what they perceive to be more claimant-friendly libel laws.

Section 10: Secondary Publishers

Section 10 states that the Court does not have jurisdiction to hear a defamation claim against a person who was not the author, editor or publisher of the statement complained of unless satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher (e.g. they were unknown).

Section 11:

Section 11 reserves the presumption in related to the mode of trial for libel cases. An application may still be made for a trial by jury, but the presumption is now that a trial will be by judge alone.

Section 12: Power to Order Defendant to Publish a Summary of Judgment

Section 12 provides that where the court gives judgment for a claimant, it may order the defendant to publish a summary of the judgment and, if necessary, to decide upon wording  and give such directions as reasonable as to the time, manner, form or place of publication.

Section 13: Power to Make Orders Against Third Parties

Section 13 provides that where the court gives judgment for a claimant, it may order the operator of a website to remove the statement or any person who was not the author, editor, or publisher of the statement to stop distributing, selling or exhibiting it.

Section 14: Special Damages

Section 14 repeals the slander of Women Act 1891 and provides that the publication of a statement conveying the imputation that a person has a contagious or infectious disease does not give rise to a cause of action in slander unless the publication causes the person special damage.

What does the Act not do?

Unfortunately, the Act is not a ‘one-stop’ consolidating Act. Significant parts of the Defamation Act 1952 and Defamation Act 1996 remain in force and will continue to be relevant to claims. Secondly, despite an attempt to codify large tranches of case law, the Act does not provide a statutory definition of when a statement is defamatory and/or the cause of action.