draft defamation bill - consultation response from libel reform campaign

7/31/2019 Draft Defamation Bill - Consultation Response from Libel Reform Campaign

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We would welcome responses to the following questions set out in the consultation paper.

You can return this questionnaire by email [email protected] in hard copy

to Paul Norris, Ministry of Justice, Legal Policy Team, 6.38, 102 Petty France, London,

SW1H 9AJ

Draft Defamation Bill

List of questions for response

Question 1. Do you agree with the inclusion of a substantial harm test in the Bill?

Comments: Yes, but the proposed clause needs to be improved to be effective inpreventing trivial or bullying claims.

Under the current law, early strike out can often take months and cost tens ofthousands of pounds. This means that trivial or weak claims still produce a chillingeffect and deter authors and publishers from defending material that is defensible or

likely to be found not defamatory.

The proposed threshold of harm test, if strengthened, would deter the initiation ofweak or hopeless actions, reduce costs and prevent this chill. Elsewhere in theresponse below we propose the availability of a Declaration of Falsity as a remedythat may be sought by the claimant in libel cases, which would contribute further tothese outcomes.

We recognise the possibility that more rigorous early assessment of cases might leadsome lawyers to front-load costs. This would be reduced by the amendments set out

under question 2 to strengthen this test so that the court can reduce time spent (andcost) in consideration of other aspects of weak or frivolous cases.

It is not clear whether this test isa) a compulsory hurdle which would involve potential costs and court time even

when there is no desire by the defendant to test the claimants case in this wayb) whether the position on evidence being heard and judged (raising costs) is the

same under this test as under the Common Law where witnesses not usuallycalled on strike out applications

Both these have implications for the possible front-loading of costs. It seems that thistest will only be of benefit to defendants if it is only triggered by an application of the


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defendant, and where the claimant is not able to insist on the hearing of witnesses atthis early stage.

Question 2. Do you have any views on the substance of the clause?

Comments:

It is not yet satisfactory. The test must be made meaningful and effective in order todeter trivial and hopeless claims and to avoid unnecessary frontloading of costs forthe claimant and defendant. The current drafting is inadequate because:

It provides less of a hurdle than the existing common law.

The test is not yet effective enough to counteract any greater potential for front-

loading of costs. It is a missed opportunity since a meaningful threshold of harm test would be

effective at deterring weak and vexatious claims.

We have five proposals to bring this test into an effective harm test:

I. The test should be defined as serious and substantial. Substantial in lawmerely means non-trivial or negligible, while serious means that it is seriousenough to bring before a court. The inclusion of serious makes the test moreobjective and would require the court to come to its own view on the level of

harm. Existing case law talks of serious harm as the test, and a substantialharm test could end up being a lower test than is available in common law.

II. The clause should incorporate the common law stipulation (Jameel v DowJones) that no case should proceed where: there is no real prospect ofvindication, or the vindication obtained such as it is is likely to bedisproportionate to the cost of achieving it. This provision has been moreeffective than the serious harm threshold in allowing weak cases to be struckout. It responds to the ECHR Article 10 requirement that interference withfreedom of expression should be proportionate.

III. Harm to reputation from publication in this jurisdiction must be judged havingregard to the extent of publication in other jurisdictions. There should be aprovision such as that set out in Clause 13 of Lord Lesters Bill:

13 Harmful event in cases of publication outside the jurisdiction

(2) No harmful event is to be regarded as having occurred in relation to the claimantunless the publication in the jurisdiction can reasonably be regarded as havingcaused [serious and] substantial harm to the claimants reputation having regard tothe extent of publication elsewhere.

This would protect authors or publishers domiciled in the EU (so not coveredby Clause 7 of this Bill) from claimants with a reputation elsewhere in


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circumstances where the majority of publication is outside England and Wales(and perhaps outside the EU if that is needed for compliance with the BrusselsI convention) such that the proportion here does not cause serious andsubstantial harm.

IV. There should be mandatory strike out in the event of the claim not passing theserious and substantial test, as proposed in the Lester Bill. The currentdiscretionary approach leaves open the threat that frivolous or hopeless casesmight proceed. This means such cases have a chilling effect on legitimateexpression due to uncertainty.

V. Clause 1 should include a definition of defamation or a statutoryinterpretation of defamation to replace arcane definitions in case law. Thiswould deter the bringing of trivial cases which restrict free expression in thearea of parody or ridicule or where there is no real damage to reputation.

In Thornton v Telegraph Media Group Ltd[2010] EWHC 1414 QB, Tugendhat J set out thedefinitions of defamation from the last 200 years and concluded that some ofthose definitions were, taken on their own, not sufficiently damaging as to bedefamatory.

This first instance judgment is valuable in common law terms but has not beentested in the higher courts. Statutory clarification would serve to make theterms serious and substantial more meaningful and would also serve toreduce re-argument of points already made by judges in the lower courts.

We will submit supplementary details on the definition of defamation.

Question 3. Do you agree that the Slander of Women Act 1891 and the common law rule

referred to in paragraph 6 should be included among the measures for repeal

in the Repeals Bill?

Comments: Yes.

It could be included in the repeals schedule in this Bill.

Question 4. Do you agree with the inclusion of a new public interest defence in the Bill?

Do you consider that this is an improvement on the existing common law

defence?

Yes we agree with the inclusion of a new public interest defence. However the oneproposed is not a significant improvement on the inadequate common law defence.


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Comments: Substantial changes to the defence proposed in this Bill are needed tomake it of practical use.


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Question 5. Do you have any views on the substance of the draft clause?

The public interest defence needs to be as simple and clear as possible and to reflect

the importance of free speech on matters of public interest. Protection of free speech

in an open society recognises that open debate and the search for truth requires thepublication of uncertain or one-sided material and that the law should err on the side

of publication.

The public interest defence must not simply be a statutory version of the existing

Reynolds defence which was conceived to facilitate publication of uncertain

information, but which has been described as of no practical use by practitioners. As

the Government says:

8However, concerns have been expressed by NGOs, the scientific community and

others that there is a lack of certainty over how the Reynolds defence applies outsidethe context of mainstream journalism, and that this creates a chilling effect onfreedom of expression and reporting. They have indicated that the current commonlaw provisions in Reynolds are difficult to rely on, and that this has led to a situationwhere legal advice given to them on running the defence is extremely cautious anddiscouraging, and so the defence is seldom used. They believe that a statutorydefence would help small organisations to be more robust in reaching decisions infavour of publication.

9. The media and publishers also expressed concerns about the way in whichReynolds operates in practice, and have found the defence very complicated and

expensive to run.

11. On balance, we consider that there is merit in providing a statutory defence whichis clearer and more readily applicable outside the context of mainstream journalism,and that this would be helpful in ensuring that publications on matters of publicinterest are sufficiently protected so that responsible journalism can flourish andinvestigative journalism and the work of NGOs are not unjustifiably impeded by thethreat of defamation proceedings.

The proposed public interest defence does not overcome the concerns associated

with the existing Reynolds defence. The Reynolds defence is unpredictable because

there is uncertainty about how the factors that establish the defendants

responsibility will be applied when a case reaches court. The courts recent efforts to

discourage the application of the factors as an exhaustive list are, and would continue

to be, undermined by the inherent presumption that publication is irresponsible

unless the defendant can prove otherwise.

We recommend a new approach which protects genuine public interest statements

while providing safeguards to ensure that statements which cannot be shown to be

true but which were made in good faith on a matter of genuine public interest are

corrected.


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The defendant should show that the publication was on a matter of public

interest. If it passes that hurdle then the defence should only be defeated if the

claimant is able to show that the publication was malicious (including reckless

disregard for the truth).

This would be combined with a number of safeguards and measures to protect those

who are the subject of statements that cannot be shown to be true.

I. To benefit from the defence in this form the defendant must be willing to

publish a correction or explanation for those statements it accepts cannot be

justified. We fully accept the view that there is no public interest in unjustified

statements going uncorrected. This is analogous to an offer of amends

procedure and would greatly incentivise early resolution of cases where the

public interest was clearly engaged and where there was no malice but factual

statements were wrong (or opinions unjustified) or could not be shown to be

true. This is also analogous to the requirements for Statutory Qualified

Privilege where many occasions or reports are protected subject to the same

three requirements: (public interest, lack of malice, and the need for correction

or explanation). The malice test would be the wide one found in qualified

privilege.

II. If a defendant seeks to defend the original publication and chooses not to print

a correction or explanation (see above), then we propose that the defendant

would need to pass a responsibility test as in the current common law.

However to solve the problem of the defence not being effective or accessible

especially to non-media defendants, the burden should be on the claimant to

show, having regard to the nature and context of publication and publisher,

that publication was irresponsible. The House of Lords in Reynolds

considered this approach and recognised that it would be stronger protection

for free speech and matters of public interest, but opted for the current

Reynolds defence which has subsequently proved unsatisfactory, not living up

to the expectations of the judges, the media or given the manifesto positions

of the parties the politicians.

III. In further recognition that there is no public interest in the propagation of false

information, claimants should be able to obtain a declaration of falsity from the

court in all cases where they can prove a defamatory allegation of fact to be

false. A free-standing declaration of falsity could be sought as an alternative to a libel

actionbut should also be an option within any libel case where a defence of

justification/truth fails or is not attempted.

We believe that this combination of a stronger public interest defence with a free-

standing remedy of a declaration of falsity would achieve the desired rebalancing of

the law in favour of free speech and the public interest, while allowing a discursive

remedy where falsehood is proved. This free-standing remedy has been proposed or

supported by those on both sides of the libel debate.


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Along with this approach, we believe that it is desirable, for clarity, to abolish the

existing common law Reynolds defence.

If the common law Reynolds defence cannot be abolished for technical reasons, we

recommend that the list of factors which may be considered when considering

whether the publication was irresponsible (as we propose above) in the new statute

closely mirrors the common law list to prevent extended and expensive legal

argument on any differences.

In particular:

a) do you agree that it would not be appropriate to attempt to define public interest? If not,

what definition would you suggest

We agree that the public interest need not be defined in the new statute.

However, it has been suggested that public interest should have a statutory

interpretation to make clear that this is not about salacious gossip. The current Press

Complaints Commission (PCC) definition (below) is helpful in this respect and would

serve the purpose of giving the PCC more status as a guide to good practice. As this

is the definition used by the press it provides an accepted benchmark. The list given

could be extended to make clear that matters of public policy and academic and

scientific matters are included.

PCC Editors Code on public interest:

1. The public interest includes, but is not confined to:

i) Detecting or exposing crime or serious impropriety.

ii) Protecting public health and safety.

iii) Preventing the public from being misled by an action or statement of an individual or organisation.

b) do you consider that the non-exhaustive list of circumstances included in subsection (2)

of the clause should include reference to the extent to which the defendant has complied

with any relevant code of conduct or guidelines?

Comments: If a list was to be included, we do not agree that it should include


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compliance with relevant guidelines.

We have learned that the inclusion of reference to codes of conduct and guidelines is

likely to discourage publishers, particularly online publishers, from adopting such

voluntary codes or guidelines, for fear of them increasing legal liability.

c) do you consider that the nature of the publication and its context should be given greater

weight than the other circumstances in the list?

Comments: Yes, whether or not a list is to be included.

We believe this term should be drafted to express more clearly the different positionof less-well resourced citizen publishers, and also small regional newspapers,compared to global media entities.

Consideration of the nature and context of the publication should reflect the fact that

the public accord less weight and authority to some kinds of publication than others.For example, exchanges between internet forum users about their personalexperiences are not regarded as likely to have been subject to the rigour ofinvestigative reporting. Assertions are often contested and rebutted in real time.Postings on a political website are expected to be biased. Satire is expected tocontain hyperbole.

Unlike the list of circumstances, which maybe taken into consideration, the courtshould be requiredto consider the nature and context of the publisher and thepublication when considering whether there has been irresponsible publication.

Additional comment:

Unless dealt with under qualified privilege (clause 5) we believe there is merit inspecifying on the face of the Bill that peer-reviewed publications are deemed to beresponsible. See under question 13.

d) do you agree that the defence should apply to inferences and opinions as well as

statements of fact, but that specific reference to this is not required? If so, are any difficulties

likely to arise as a result of the overlap between this defence and the new honest opinion

defence?

Yes. We would wish to see specific reference to this for the avoidance of doubt.

It is very likely that material on public interest matters would include a mixture of factand opinion. The public interest defence is designed to protect publication ofuncertain material in the public interest which may turn out to be wrong. The honestopinion defence relies on the underlying fact being true.

e) do you agree with the approach taken on the issue of reportage?


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Comments: Yes, although there needs to be clarity about how a statutory defence ofreportage will sit with any new treatment of the repetition rule in clause 3.

Question 6. Do you agree that it is appropriate to legislate to replace the existing common

law defence of justification with a new statutory defence of truth?

Comments: We are concerned that the defence is not narrowed in the minds of the

public or the courts by changing its name from justification to truth. In everyday

and legal use something may be justifiable without being completely true whilst truth

suggests that what is necessary is to demonstrate the whole truth and nothing but

the truth of the statement.

The existing common law allows a justification defence to succeed in the absence ofthe whole truth; and the proposed defence considers a statement justified when the

substantial truth of a defamatory imputation is demonstrated.

Question 7. Do you agree that the common law defence should be abolished, so that

existing case law will be helpful but not binding for the courts in reaching

decisions in relation to the new statutory defence? If not, what alternative

approach would be appropriate?

Comments: Yes, subject to clarification sought under question 6 that the statutorydefence is not narrower.


Comments: There is possible confusion between the language here (materiallyinjure) and the language in clause 1 (which we argue should be seriously andsubstantially harm). We suggest that the language should be consistent.

The draft clause appears to apply the repetition rule (where a defendant cannotescape liability by merely repeating a defamatory statement of a third party) mustapply where the defamatory imputation is merely that there are grounds forinvestigating the claimant (Chase level 3) rather than reasonable ground to suspect(Chase level 2) or allegations of guilt (Chase level 1) where the repetition rule alreadyapplies in the common law. This is not a settled point in case law and needs to bejustified. It also has an impact on the common law (and proposed statutory defence see question 4e above) of reportage.


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Question 9. Do you consider that the current law is producing unfair results where there is

a single defamatory imputation with different shades of meaning? If so, how

could this best be addressed?

Comments: One aim of these reforms is to avoid complex and unclear libel cases,which benefit neither claimant nor defendant. Therefore the single meaning ruleshould be retained with the provisions of section 5 of the 1952 act. (That is, when thestatement complained of contains two or more imputations, the defence does not failif the defendant is able to demonstrate that some of those imputations aresubstantially true, to the extent that the remaining imputations do not materially injurethe claimants reputation.)

We would also wish to see included in the clause provision 5(3) of Lord Lesters Bill.This states that the defence of truth should not fail only because one meaning alleged

by the claimant is not shown to be substantially true, if that meaning would notmaterially injure (see question 8 above) the claimants reputation in the light of whatthe defendant has otherwise shown to be substantially true. This would help make theclause 1 serious and substantial harm test have relevance throughout theproceedings rather than just at the first stage.

Question 10. Do you agree that it is appropriate to legislate to replace the existing common

law defence with a new statutory defence, and that this should be called a

defence of honest opinion?

Comments: Yes

The common law fair comment defence has not afforded sufficient protection toexpression of honestly held opinion. Fair comment was not a true reflection of theexisting case law which did not require a comment to be fair. Opinion is a betterterm to describe statements of opinion.

Question 11. Do you agree that the common law defence should be abolished, so that

existing case law will be helpful but not binding for the courts in reachingdecisions in relation to the new statutory defence? If not, what alternative

approach would be appropriate?

Comments: Yes.


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Question 12. Do you have any views on the substance of the draft clause? In particular:

a) do you agree that condition 1 adequately reflects the current law that the statement must

be recognisable as comment?

Yes

Comments:

Condition 1 is clearer than the current law and reflects the practice of distinguishingbetween statements of fact and statements of opinion.

b) do you consider that the requirement in condition 2 that the matter in respect of which the

opinion is expressed must be a matter of public interest should be retained?

No

Comments:

We do not see the need or justification for retaining a public interest test here, for thefollowing reasons:

I. Public interest is very broadly defined in the common law defence. It means,

effectively, not private. As such it is redundant because the tort of misuse of

private information covers publication on matters of a private nature (medical

records etc).

II. The transposition of the term into statute causes confusion with the narroweruse of the term public interest in clause 2 (public interest defence).

III. People should be free to express an opinion, without risk of liability, on any

matter in the public realm, not just matters in the public interest.

IV. The inclusion of a public interest requirement might cast doubt on the

availability of the defence to opinions published in the context of a work of art

or literature (e.g. a memoir, novel, play, poem or satire, with some resemblance

to real figures).

If a public interest test is retained, which we do not believe to be justified, it should beclarified that its meaning in honest opinion will not be narrowed to its meaning inclause 2.

We would also suggest that it is amended to: that the opinion is on a matter of publicinterest or is made in the context of a work of art or literature to cover artistic andliterary statements. This could still be defeated if the claimant shows that thestatement was not one of opinion, that it was not based on an existing fact, or that theopinion was not held honestly.

c) do you agree with the approach taken in relation to condition 3 that the opinion must be


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one that an honest person could have held on the basis of a fact which existed at the time

the statement was published or an earlier privileged statement?

Comments:

The new condition 3, an honest person could have held the opinion, is not clear andwould limit the practical value of the defence. It is not clear from the proposed

drafting whether this means that an honest opinion requires the defendant:

I. to be aware of the pre-existing fact or privileged material at the time of the

comment; or

II. to make any reference, even in general terms, if it is not already obvious from

the context (e.g. theatre or restaurant review), to the underlying fact or

privileged material.

If neither is required this may not deliver fairness for an individual defamed (and thusmay undermine confidence in the reforming approach otherwise taken in this bill).

The Libel Reform Campaign believes that there are far better ways to rebalance the

law towards defendants (see our suggestions on clause 1 and clause 2 in particular)

than by making complex and uncertain revisions to the fair comment (honest opinion)

defence at the point where its ground rules have recently been made clearer.

The risk is that it would lead to extensive and complex new case law which would add

to expense, whereas the Supreme Court has already clarified these points in its recent

judgement in Spiller v Joseph [2010] UKSC 53. If it is the intention of condition 3 to

cover the existing position as set out in Spiller v Joseph, this should be made clear. If

not this should also be made clear, as the Lord Lesters bill did.

d) do you consider that the defendant should be allowed to rely on the honest opinion

defence where they have made a statement which they honestly believed to have a factual

basis, but where the facts in question prove to be wrong?

This is not straightforward.

Comments:

It may allow defendants to retrospectively identify allegations of fact that they thenclaim to have honestly believed. This and the introduction of a new subjective test tosit alongside the objective test in condition 3 and the existing test of malice (which wepresume is being maintained) would complicate the law. A narrower extension ofhonest opinion, allowing it to be based on facts which prove to be wrong, would befor the court to judge that the honestly mistaken belief was reasonable.


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e) do you agree that the new defence should not apply to statements to which the public

interest defence in clause 2 of the Bill applies?

No (i.e. it should).

Comments:

It should be possible to run either defence, as is usual, rather than choose one at an

early stage for statements of opinion, as the draft bill allows. Where the factual basis

can be demonstrated defendants will wish to demonstrate honesty and use honest

opinion but where the factual basis cannot be clearly demonstrated the public interest

defence in clause 2 should be available. This is sensible as it prevents prolonged

argument on whether statements are factual or are opinion.

Lord Lesters Bill allowed statements of honest opinion based on matters covered by

the public interest defence (as a recent form of privilege) to benefit from the honest

opinion defence, whereas the draft bill allows the defence only for statements of

honest opinion made on the basis of facts shown to be substantially true or which are

privileged in the conventional sense. Statements of opinion on matters already

determined to have public interest privilege should be able to benefit from the

honest opinion defence, subject to the usual test of malice, and the objective test of

honest belief that the facts were true.

f) do you agree that an objective test of whether an honest person could have held the

opinion should apply? If not, would a subjective test of whether the defendant believed that

his or her opinion was justified be appropriate?

Comments:


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Question 13. Do you have any views on the changes made to the scope of absolute and

qualified privilege in clause 5? In particular:

In order to give clear protection to peer-reviewed academic publications such

publications should be included under qualified privilege. This is consistent with theinclusion of reports of scientific conferences because researchers are professionallyobliged to report the findings of their research. Furthermore, such publications aretraditionally already subject to explanation and contradiction, which has been arequirement of part 2 of the schedule.

Free expression of opinion on published research is crucial to scientific andacademic debate; honest opinion on privileged material is protected under clause 4 ofthis Bill.

The inclusion of this provision would not cover all scientific discourse which is why amuch more effective public interest defence in clause 2 is vitally needed as set out inour answer above.

a) Do you agree that absolute privilege should be extended to fair and accurate reports of

proceedings before international courts and tribunals as proposed? If not, what extension (if

any) would be appropriate?

Comments: Yes

b) Would it be helpful to define the term contemporaneous in relation to absolute privilege

for reports of court proceedings? If so, how should this be defined?

No

Comments: see below

c) Alternatively, should the distinction between absolute and qualified privilege in relation to

contemporaneous and non-contemporaneous reports be removed? If so, which form of

privilege should apply?

Yes

Comments: Absolute privilege should apply in all cases, in the absence of malice.

d) Do you agree that Part 2 qualified privilege should be extended to summaries of

material? If so, do you have any views on the approach taken?

Yes


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Comments: None

e) Do you agree that Part 2 qualified privilege should be extended to fair and accurate

reports of scientific and academic conferences? If so, should definitions of these terms be

included in the Bill, and how should any definitions be framed

Yes

Comments: We do not believe that these terms require definition. There is already along-standing provision providing QP for reports of proceedings of public meetings.There has been very little argument over what constitutes a public meeting (or indeedabout the definition of any of the other categories in the Schedule) for these purposesand the treatment in the case law such as it is has been very liberal. No problems ofdefinition are anticipated and if any arise the courts can manage them.

f) Do you agree that Part 2 qualified privilege should be extended to cover proceedings in

other countries? If so, do you have any views on the approach taken?

Yes

Comments: None

g) Do you agree that Part 2 qualified privilege should be extended to fair and accuratereports of proceedings at general meetings and documents circulated by public companies

anywhere in the world? If so, do you have any views on the approach taken?

Yes

Comments: None

h) Do you agree that no action is needed to include a specific reference to press

conferences? If not, please give reasons and indicate what problems are caused by the

absence of such a provision

The House of Lords was clear in the case ofMcCartan, Turkington and Breen (a firm)

vs Times Newspapers Limited, that a press conference was a public meeting for the

purposes of paragraph 12 of Schedule 1 of the 1996 Act.

Therefore statutory confirmation of that is not necessary but may be desirable. The

judgements in that case make clear that the press represent the public and the fact

that non-malicious reports of a press conference are covered by privilege while non-

malicious reports derived from investigative journalism are not gives a further basis

for our recommendation in clause 2 that non-malicious public interest publications

subject to correction or explanation are protected by a public interest qualifiedprivilege.


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i) Do you consider that qualified privilege should extend to fair and accurate copies of,

extracts from, or summaries of the material in an archive, where the limitation period for an

action against the original publisher of the material under the new single publication rule has

expired? If so, how should an archive be defined for these purposes to reflect the core focus

of the qualified privilege defence?

Yes

Comments:

An archive should be publicly accessible for such purposes, where public means a

sufficient section of the public, including specialist audiences, to provide public

benefit. We refer to the provisions on public benefit in the Charity Act 2006.

We question whether the assertion in the consultation document that as the

publications are original documents this would not sit readily with the focus of thedefence on copies, extracts and summaries of material since it is not clear that this

is the focus of the defence, and original material issued as part of the proceedings in

the circumstances listed in the schedule are clearly covered by the defence (for

example press releases handed out at press conference as per the judgment in

McCartan, Turkington and Breen above).

Question 14. Do you consider that any further rationalisation and clarification of theprovisions in schedule 1 to the 1996 Act is needed? If so, please indicate any

particular aspects which you think require attention.

No

Comments: None

Question 15. Does the specific issue raised by the National Archives affect any other forms

of archive, and have problems arisen in practice? If so, would it be right to

create a new form of qualified privilege in this situation?

No

Comments: None


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Question 16. Do you agree with the inclusion of a clause in the Bill providing for a single

publication rule?

Yes

Comments:

The multiple publication rule is 150 years out of date and we welcome its replacement.

Question 17. Do you have any views on the substance of the draft clause? In particular,

a) do you consider that the provision for the rule to apply to publications to the public

(including a section of the public) would lead to any problems arising because of particular

situations falling outside its scope?

No

Comments: None

b) do you agree that the single publication rule should not apply where the manner of the

subsequent publication of the material is materially different from the manner of the firstpublication? If not, what other test would be appropriate?

Yes we agree that it should not apply

a) where the publication is not the same or substantially the same or

b) where the manner of subsequent publication is materially different.

However, the single publication rule should still apply to republication by a different

publisherwhere the publication is the same or substantially the same and which

does not materially alter the manner of publication.

Comments:

However, we remain concerned about the position of archives. Those who publish

material online as part of an archive are not exercising editorial control. They should

therefore benefit from the protections available to secondary publishers, in the

absence of a court ruling declaring any specific material to be defamatory or libellous.

We outline these protections in our answers to the consultation question on the

internet.

We are also concerned about the position of open access online scholarly publishing.

It is now a common practice for journal content that is published initially on a

subscription basis to be made available on an open access basis after a period of

time often more than a year. This is a desirable practice as it enables scientific and


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medical advances to be accessible to developing countries that cannot afford

subscriptions. It is not the case that scholarly articles which are a year old are

significantly more widely read in this country when placed online and made open

access than the original publication read by subscribers and in libraries by interested

researchers and students. Nevertheless, this practice would place such a manner of

publication at risk of being considered materially different and not protected by the

single publication rule. There should be a specific exemption in the definition of a

materially different manner to cover the narrow circumstances of scholarly journals

being converted into an open access form.

Question 18. Do you consider that any specific provision is needed in addition to the courts

discretion under section 32A of the Limitation Act 1980 to allow a claim toproceed outside the limitation period of one year from the date of the first

publication?

No

Comments: None

Question 19. Do you agree that the proposed provisions on libel tourism should be included

in the draft Bill?

Yes

Comments: None


We think the draft clause is very good.

We recognise that EU law means that this clause and the provisions behind it onlyapply to non-EU defendants and that this provides no restrictions on the ability oflibel tourists to sue in England and Wales where the defendant is domiciled in theEU. We believe that this requires further action to deal with bullying claims and haverecommended this in clause 1 (question 2(c)).


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We responded to the Brussels I consultation on defamation asking that thegovernment consider limiting claimants to their domestic court in defamation actions.

Question 21. Do you agree that the presumption in favour of jury trial in defamation

proceedings should be removed?

We recognise the merit of improving access to justice for both sides through the

lower costs that are incurred where there is no need for extensive pre-hearings on

what can later be put before a jury and where there is early resolution of non-jury

trials. We support the right to a jury trial being retained under the circumstances

described in the consultation.

Question 22. Do you have any views on the substance of the draft clause? In particular:

a) do you consider that guidelines on the circumstances governing the courts exercise of its

discretion to order jury trial should be included on the face of the Bill? If so, what factors or

criteria do you consider would be appropriate? Please provide examples.

None

b) would it be appropriate for any provisions to be included in the Bill to clarify which issues

should be for the judge to decide and which for the jury (where there is one)? If so, do you

consider that any changes are needed to the role of the jury on any particular issue (in

particular in relation to determining meaning)?

We argue strongly for the inclusion of measures outlined in

Q.30 Q.34 (below), which would obviate the need for juries to determine meaning.

Question 23. Do you consider that it would be appropriate to change the law to provide

greater protection against liability to internet service providers and other

secondary publishers?

Yes

Comments:

The internet is the front line for free speech today. We are witnessing an

unprecedented revolution in communication. However, under the current law internetentities (including intermediaries such as internet access providers; hosting


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providers such as webhosts, social networks and discussion boards; and search

engines) are either not adequately covered or not clearly seen to be protected.

Some entities such as search engines and mere conduits are exempt from

liability although this is not clear in the statute for search engines.

Others such as those who host user-generated content or blogs are forms ofsecondary publisher (some are the online version of bookshops, providing a

platform but having no relationship at all to content), and do not have the

information or resources to check the material against claims. They should not

be liable to the same degree as primary publishers such as authors or editors.

However currently they are especially vulnerable to vexatious threats from

claimants, for whom they are easier targets than the authors who may be

willing and able to defend the publication.

It is therefore essential that the defamation bill modernises the law in order to providethe necessary protection for freedom of expression online. Without this reform, the

most significant development in freedom of speech in 600 years will be disabled by

what has been dubbed the privatisation of censorship, as published material is

removed on the basis of threats and fear with no judicial oversight.

The main problem under the current law is that innocent parties who were not

responsible for writing, editing or commissioning defamatory content are currently

liable (or may consider themselves to be liable) in some circumstances, for suit in

libel; and are therefore under pressure to censor by removing content, often by

removing an entire website rather than the offending comment. Furthermore, when

they do this, they act as judge and jury, when they have no expertise to enable them

to effectively make a fair judgement on the matter.

In this area of law secondary publishers are obliged to engage in a form of privatised

censorship, with no proper protection from the rule of law.

There is significant support in the case law of the old innocent dissemination defence

as well as under the provisions of the E-commerce Directive 2002 for increasedprotection for secondary publishers. Both these sources provide that rather than

merely having to assert that material is defamatory the claimant needs to

demonstrate that material is libellous (or at least likely to be held as libellous) before

secondary publishers are potentially liable if they do not remove it (see Additional

Submission).

In addition, the Law Commission has noted:

There is a strong case for reviewing the way that defamation law impacts on internet service providers.

While actions against primary publishers are usually decided on their merits, the current law places

secondary publishers under some pressure to remove material without considering whether it is in the

public interest, or whether it is true. These pressures appear to bear particularly harshly on ISPs, whom

claimants often see as tactical targets. There is a possible conflict between the pressure to remove

material, even if true, and the emphasis placed upon freedom of expression under the European


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Convention of Human Rights. Although it is a legitimate goal of the law to protect the reputation of

others, it is important to ask whether this goal can be achieved through other means.

Law Commission: Defamation and the Internet, 2002. Para 1.12

However, the problem is not really recognised in the consultation document where itdiscusses the existing arrangements.

It cannot be right for those without editorial control of publications, and who are not

in a position to judge the material complained of, to be forced to censor material for

fear of liability. The author has no opportunity to justify or defend their words and

none of the protections in clauses 1, 2, 3, 4 and 5 of this Bill. It can lead to

disproportionate interference with the primary publishers right to free speech, which

is contrary to Article 10 of ECHR.

Question 24. If so, would any of the approaches discussed above provide a suitable

alternative? If so, how would the interests of people who are defamed on the

internet be protected? Do you have any alternative suggestions?

We believe that a suitable alternative framework could be created which is a version

of the third approach outlined under paragraph 114 of the consultation document.

An appropriate scheme such as our court-mediated liability gateway (below) would

have the following properties:

Ensure that authors and editors (so called primary publishers) are responsible

for their words and not third parties

Provide more certainty to internet intermediaries that they are exempt, and

provide more protection for online secondary publishers, such as web hosts

and other, and indeed to off-line secondary publishers, such as booksellers

Encourage post-publication moderation of user-generated content by being

clear that this does not bring liability

Be fair and low cost to those defamed Be manageable by the courts and straightforward in legislative terms

Align English law properly with the provisions of the E-Commerce Directive

and ensure that English law is updated with regard to search engines and

other developments on the internet

Though it may be possible to achieve these properties through different formats, we

have described an outline of a scheme that we think would be most appropriate in

brief here and in more detail in our supporting submission.

The brief outline is as follows:


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I. A claimant must obtain a court order/authorisation in order to apply potential

liability to a secondary publisher such as a web-host or internet intermediary.

(This would be regardless of whether a claimant has asked the web-host to

remove the allegedly defamatory material on an informal discretionary basisand it has not been removed.)

II. In the application for that authorisation the claimant must specify:

a. the words or matters complained of and the person (or persons) to whom

they relate

b. the publication that contains those words or matters

c. why the claimant considers the words or matters to be defamatory

d. the details of any matters relied on in the publication which the claimant

considers to be untrue

e. why the claimant considers the words or matters to be harmful in the

circumstances in which they were published

f. whether and when they contacted any primary publisher (either directly or

via others) to request that material be removed and what the response of

the primary publisher was, and

g. whether and when they contacted any secondary publisher to request take

down on a voluntary, discretionary basis (this is merely to aid the court in

deciding any further notice period)

III. Potential liability of secondary publishers should flow, without prejudice todecisions or pleadings in later proceedings, only from the issue of an initial

court decision, that on the basis of the information available to the court:

a. the publication passes the serious and substantial harm test in clause 1

b. the material is not obviously a privileged publication

c. a cause of action in libel will not be prevented either

by virtue of the clause 7 provisions regarding the appropriate forum

for defendants who are not EU domiciles;

by limitation under the single publication rule; or

any other basis;

d. the alleged web-host or intermediary is not exempt from liability underexisting law (e.g. mere conduits under the E-commerce directive)

e. the alleged secondary publisher is not already liable by virtue of being a

primary publisher

f. primary publishers have been contacted and have not come forward to

defend the publication,

g. the content is still up and

h. the most appropriate (proximal) intermediary is the subject of the

application (i.e. the one who can remove the words not just the website)

This scheme can be delivered at a level below the High Court and on the basis of a


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written application, and the respondent can join proceedings via an appeal. The court

authorisation would constitute actual knowledge for the type of defence that

section of the 1996 Act ought to be, and for the purposes of the E-commerce

regulation, and include a time by which the material should be taken down in order for

the defence to be available.

Further details of options for such a scheme are being supplied in a separate

response to this consultation, together with an analysis of what changes are required

to update English law. Our primary concern is that the scheme would remove the

problems of automatic removal of material and privatised censorship described

Question 25. Have any practical problems been experienced because of difficulties in

interpreting how the existing law in section 1 of the 1996 Act and the E-

Commerce Directive applies in relation to internet publications?

Yes

Comments: See our answers to questions 23 and 24 above and our additional

submissions. We refer as an example to Kaschke v Gray and Hilton [2010] EWHC 690

(QB) where the liability of the secondary publisher was assumed in a case which was

eventually struck out on the basis that the defamatory remarks were not capable of

being libellous.

Question 26. Do you consider that clause 9 of Lord Lesters Bill (at Annex C) is helpful in

clarifying the law in this area? If so, are there any aspects in which an

alternative approach or terminology would be preferable, and if so, what?

We believe that this Defamation Act must include a clear approach and terminology inorder to avoid future confusion. We will send a further submission on this.

Question 27. If Lord Lesters approach is not suitable, what alternative provisions would be

appropriate, and how could these avoid the difficulties identified above?

This is addressed in our responses to questions 23 and 24 above and in our

additional submission.


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Question 28. Have any difficulties arisen from the present voluntary notice and takedown

arrangements? If so, please provide details.

Yes, see our responses to questions 23 and 24 above and in our additional

submission. The problem with the current voluntary scheme is that it is notvoluntary because the complaint of defamatory material may be thought to constitute

actual knowledge and thus trigger liability of the material is not taken down. This

deters secondary publishers from having a truly discretionary scheme for fear of

importing liability. Our suggested scheme addresses this problem.

Question 29. Would a statutory notice and takedown procedure be beneficial? If so, what

are the key issues which would need to be addressed? In particular, what

information should the claimant be required to provide and what notice period

would be appropriate?

A statutory notice and takedown procedure should only be considered alongside a

scheme which provides that potential liability based on more than an allegation of

defamation - has been established following a court decision as set out under

questions 23 and 24 above and our additional submission. The point is that the

problem is not the detail of the notice and take-down arrangements that are part of a

defence for secondary publishers, but what the trigger is for potential liability on the

first place.

Question 30. Do you consider that a new court procedure to resolve key preliminary issues

at an early stage would be helpful?

Yes

Comments:

We are currently conducting research into a range of options to resolve bothpreliminary issues and the entirety of an action through early determination and/or

forms of ADR under a steering group chaired by Sir Stephen Sedley. These

alternatives to a High Court trial are crucial in reducing the costs of a libel action,

facilitating access to justice, and restoring legal certainty for both claimants and

defendants. We welcome the Governments proposal for some form of early

resolution procedure within the Court system but alongside this, careful

consideration must be given to whether the High Court is the most suitable forum for

all defamation disputes.

We note the Government is, separately, consulting on increasing the exclusive

jurisdiction limit of money claims so that all civil cases worth under 100,000 must beissued in the County Courts. The average amount of damages in libel cases falls well


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below this. We believe it is worth considering whether defamation actions may be

started in the County Courts, where specialist judges may be appointed. The

proposed early resolution hearing will not be about legally complex issues that need

to be argued over by Queens Counsel in front of a High Court judge. If a case is

particularly complex the powers to transfer to the High Court remain. This procedure

could be set alongside a requirement for the parties to try to use alternative forms of

dispute resolution, either before or after the early resolution hearing.

Question 31. If so, do you agree that the procedure should be automatic in cases where the

question of whether the substantial harm test is satisfied; the meaning of the

words complained of; and/or whether the words complained of are matters of

fact or opinion are in dispute?

Yes

Comments: If combined with maximum recoverable costs this would save thousands

of pounds in costs and hundreds of working days for both claimants and defendants,

reducing the unwarranted chill from libel actions on freedom of expression and

scientific enquiry.

Question 32. Do you consider that the issues identified in paragraph 127 above should also

be determined (where relevant) under the new procedure? Please give yourreasons.

Yes

Comments: These issues are capable of early determination where claimants are

genuinely interested in vindicating their reputation rather than bullying the defendant

into settlement.

Question 33. Are there any other issues that could usefully be determined under the new

procedure? Please give your reasons.

None at present.


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Question 34. Do you have any comments on the procedural issues raised in the note at

Annex D and on how the new procedure could best operate in practice?

We agree with most of the considerations raised in Annex D. We would urge the

Government to strengthen the Pre-Action Protocol and its policing whether or notthese measures are adopted.

The proposed procedure needs to be activated early on in a case. Costs will not be

reduced if significant amounts of work have been done pre-proceedings, or if it takes

six months after the issue of the claim for the hearing to take place.

Clear trigger points are needed so that the issues to be resolved at the early hearing

are identified quickly, and this leads to a hearing being automatically listed. To

provide such clarity, specific defamation forms could be developed for the claim and

defence.

Once the hearing has taken place and a decision has been made on preliminaryissues, the parties should be given the opportunity to settle the case without need for

a full hearing on the issues, or at least to narrow the issues in dispute. We believe that

serious consideration ought to be given to whether the parties should be required to

try to solve the remaining issues through the use of alternative dispute resolution at

this point. If, after a specified period, the case has not settled, the parties could be

required to serve a statement of issues in dispute, allowing the Court to make

appropriate directions.

Court fees could be staged appropriately so that there is a lower fee to pay to issue

the claim and deal with the early hearing, and further fees payable if the case needs to

progress.

We would also urge the Government to ensure that the early hearing is used as an

opportunity to ensure that cases are carefully managed by the courts. Whether the

new hearings take place in the High Court or County Court, they would benefit

significantly from case management to prepare the matters for trial. The Court could

also exercise its powers to control the costs of the parties at this stage.

Question 35. Do you consider that the summary disposal procedure under sections 8 and 9

of the 1996 Act should be retained?

Yes

Comments: None


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Question 36. If so, do you consider that any amendments could be made to the procedure

to make it more useful in practice, and if so, what? In particular, should the

Lord Chancellor exercise his power to amend the level of damages which can

be ordered under the summary procedure? If so, what level should be set?

Higher damages might be made available under the summary procedure in

order to show claimants that this was a meaningful route to pursue.

Question 37. Do you consider that the power of the court to order publication of its

judgment should be made available in defamation proceedings more

generally?

Yes

Comments:

Furthermore, we believe that this Bill should include a clause on REMEDIES and thatthese should include a declaration of falsity. Where damaging allegations of fact arethe subject of an action, and there is no successful defence of justification, there ismerit in providing for the court to be able to provide vindication, without damages, bya declaration of falsity. The court should have the discretion to order publication ofthe judgement, the declaration or that there has been such a declaration.

A claimant could seek this remedy in any libel case where the defence succeeds on a

basis other than justification or honest opinion.

We believe that this discursive remedy should also be available to claimants whoseek a short judgement based on facts and who do not seek damages, as a free-standing alternative to libel action.

We further believe that it should be available to non-natural persons when theircauses of action in libel are restricted, as proposed under question 38.

Question 38. Do you consider that any further provisions in addition to those indicatedabove would be helpful to address situations where an inequality of arms

exists between the parties (either in cases brought by corporations or more

generally)? If so, what provisions would be appropriate?

Yes

Comments

Restrictions should be introduced for corporate claimants and other non-natural

persons.


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The libel cases that have raised public concern over the last few years have generally

concerned corporations suing individuals, particularly corporations trying to silence

scientists and scientific debate (e.g. BCA v Singh, NMT Medical v Wilmshurst, GE

Healthcare v Thomsen, Nemesysco v Lacerda).

These cases are the tip of an iceberg. There many other cases, which never come to

public attention, where threat of libel from a company leads to immediate retreat or

early settlement. Those cases that have come to light such as the case of Rodial

Ltd, a manufacturer of a breast enlargement cream, threatening a consultant plastic

surgeon who criticised the claims made for the product demonstrate the bullying

nature of the threats and the damage done to the public interest by such behaviour.

It seems that that the way that some corporations are using libel law to try to stifle

criticism or even debate leads to a free speech chill and hinders scientific debate.

This is a clear indication that it is not in the public interest that corporations are able

to sue for libel.

The ECHR case law has clearly demonstrated that, while non-natural persons

including companies are entitled to some human rights protection, they do not have

psychological integrity or a family life to protect, and cannot therefore benefit from

the development of an Article 8 right to reputation in Strasbourg case law.

It is therefore justifiable to treat non-natural persons (including corporate bodies) in a

different way from natural persons. We accept that non-natural persons do need a

remedy for damage to reputation with respect to Article 10 (2).

We believe that all non-natural persons suing in libel should have to show actual (or

likely) financial harm and show malice (improper motive, or lack of belief in, reckless

disregard to, the truth of a statement). Non-natural persons also have other means

with which to vindicate their reputations:

I. Malicious falsehood. This requires a claimant to show actual financial harm

(special damage), that a statement was false and to demonstrate that the

defendant was motivated by malice (improper motive, or lack of belief in,

reckless disregard to, the truth of a statement). It could be placed on a

statutory footing and could involve a reversal of the burden of proof in the

malice test when a case involves two companies.

II. Libel actions by company directors (or equivalent) in their own name where the

defamation passes the serious and substantial harm threshold; this clearlypreserves a cause of action for serious defamation relating to allegations of


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misconduct in business and will effectively provide a retained cause of action

in libel for small (and family) businesses and other organisations synonymous

with an individual. There is thus no need to have an arbitrary line between

large and small companies.

III. As suggested above under the public interest defence (clause 2) a free-

standing remedy of obtaining a declaration of falsity should be made available

for this purpose (they are currently only available under a summary judgement

or via an application under section 6 of the Human Rights Act). Where actual

(or likely) financial damage has also been demonstrated the courts should

have the discretion to require publication of the declaration.

IV. Other remedies have recently been made available such as the Business

Protection from Misleading Marketing Regulations 2008 (BPRs) which came

into force on 26 May 2008 and deal with false advertising claims amongst otherissues.

Removal of causes of action from non-natural persons would have the following

advantages:

I. It would remove the chilling impact on free speech due to inequality of arms

and the ability of corporations to scour the internet for negative comments

about them and seek to suppress them. The advantages for society are

significant in terms of the rights and ability of citizen journalists and the

national press to be able to hold corporations to account.

II. It would be in the public interest to have greater discussion on matters

involving corporations.

III. It would begin to limit the power of those who are already the most powerful

in society.

IV. It would acknowledge libels original purpose, which was to protect the

reputation of natural persons.

V. It would still allow corporations to use their budgets to counter claims by

marketing, advertising and issuing press statements.

This would also bring private entities into line with public authorities who are

currently barred from using libel by the Derbyshire principle.


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Question 39. Do you agree that it would not be appropriate to legislate to place the

Derbyshire principle in statute? If not, please give reasons and provide

evidence of any difficulties that have arisen in practice in this area.

No

Comments:

We believe that Derbyshire should be placed in statute in order to clarify the law inthis area and to introduce the further measures outlined below.

However, this would be obviated by requiring all non-natural persons to vindicatetheir reputations through the routes described under question 38. This would coverpublic authorities and political parties.

Question 40. Do you agree that it would not be appropriate to legislate to extend the

Derbyshire principle to restrict the ability of public authorities or individuals

more generally to bring a defamation action? If not, please give reasons and

indicate how any such provisions should be defined.

No

Comments:

We believe that no non-natural person should be able to bring a libel action (question

38 above) and that this would include all bodies carrying out public functions. Thishas the merit of precluding debate on what is a public authority, a debate well

rehearsed but never resolved in respect of section 6 of the Human Rights Act.

If non-natural persons were able to continue to sue in libel, then we would argue that

Derbyshire should be made applicable to all non-natural persons who perform a

public function when the allegedly defamatory statement relates to that function. It is

important that state services, which are increasingly delivered by private bodies, are

not able to use the threat of libel action to prevent comment by citizens. It is also

important to avoid discrimination: private contractors delivering public services

should not be given greater protection than public bodies doing the same.

Question 41. Do you have any comments on the costs and benefits analysis as set out in

the Impact Assessment?

We see an over-stated distinction in the Impact Assessment between claimants anddefendants as though these are two identifiable and distinct groups with divergentinterests. We all, as citizens, would benefit from a clarified and liberalised libelregime.

We would also question the note on non-monetised costs under Policy Option 2, thatthere would be costs to claimants from reduced protection from reputational


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damage. The Bill does not reduce claimants protection from reputational damage. Itsimply introduces a substantial harm test to the concept of reputational damage andseeks to prevent legal abuses by those who are primarily concerned to manage theirreputation in the public sphere through commercial means. In legal and moral terms,no-one should suffer substantial reputational damage as a result of these reforms.

Question 42. Do you have any information that you believe would be useful in assisting us

in developing a more detailed Impact Assessment?

Yes

Comments: We could provide information relating to the monetised cost to publishersof mitigating the risk of libel actions under the current regime.

Question 43. Do you consider that any of the proposals could have impacts upon the

following equality groups?

None

Please complete the section overleaf to tell us more about you.


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About you

Please use this section to tell us about yourself

Full name

Jonathan Heawood, Tracey Brown, John

Kampfner, Evan Harris

Job title or capacity in which

you are responding (e.g.

member of the public etc.) Libel Reform Campaign

Date 10th June 2011

Company name/organisation

(if applicable):

Libel Reform Campaign

Address

Free Word Centre

60 Farringdon Road

London

PostcodeEC1R 3GA

If you would like us to

acknowledge receipt of your

response, please tick this box(please tick box)

Address to which the

acknowledgement should be

sent, if different from above

[email protected]

[email protected]

If you are a representative of a group, please tell us the name of the group and give a

summary of the people or organisations that you represent.


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The Libel Reform Campaign is a coalition of three charities, English PEN,

Index on Censorship and Sense About Science, which represent the public

benefit in human rights, literature and scientific understanding.

draft defamation bill - consultation response from libel reform campaign

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