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Privacy statement - Terms and conditions

Defamation Act

14 May 2013

As we reported on our law less ordinary blog on 24 April, the long awaited Defamation Act has now been passed.

The Act is a response to concerns that the right of free speech was being chilled by the UKs claimant-friendly and costly defamation laws.

The Act rewords some of the existing law, improves protection for free speech on matters of public interest, and makes some key changes relating to online publications.

Separately, the Jackson costs reforms are intended to prevent freedom of speech from being repressed when defendants are threatened with demands for payment of legal costs, by making excessive costs irrecoverable.

Key measures

  1. A new defence of publication on a matter of public interest. Although the explanatory notes suggest this reflects the principles already established in case law, the defence appears to be much broader than this. Rather than proving they were responsible, a defendant must show they had a reasonable belief that publication was in the public interest.
  2. A new defence for statements published in a peer-reviewed scientific or academic journal.
  3. A new defence for website operators, if they did not post the statement on their website themselves. This is only defeated if the website operator fails to respond to a formal notice by identifying the originator of the statement. As the defence is not defeated by knowledge, some website operators might change their policies, so that they do not immediately take down defamatory material upon complaint.
  4. A single publication rule which implements an effective limitation period of one year from the date of first publication. This addresses the problem of claimants suing over archived internet material which is re-discovered at a later date.
  5. A court should not allow an action against someone who was not the author, editor or publisher of the statement, unless those person(s) cannot be identified. This provides a further defence for intermediaries.
  6. A claimant must now prove that a statement had caused or is likely to cause serious harm to their reputation. It remains to be seen if this simply states what the court has been applying in practice (but with an additional hurdle for trading businesses).

The Act is not intended to address the Leveson inquiry matters, so we anticipate that further remedies may soon be available to potential claimants.

Implications for businesses

To pursue an action in defamation, a company must now show that the publication has caused, or is likely to cause, substantial financial loss.

In commercial reality, a business is unlikely to pursue a defamation action unless this requirement is fulfilled. The question will therefore be what evidence is needed to prove this at the outset. Documentary evidence will realistically be required - but it may fall short of actually proving loss of trading profits and customers.

Moreover, this requirement falls far short of the prohibitions on private companies suing in defamation which some had called for.

Implications for website operators

Website operators are given more protection by the Act, providing they can provide sufficient information on the originator of the statement. This process may also avoid the costs of pre-litigation disclosure applications.

Website operators may want to review their privacy terms and conditions, and data gathering procedures, to ensure that they are in a position to take advantage of the new defences.

Implications for organisations working in the public sector

As potential defendants to actions relating to, for example, negative referrals to social services, the Act may strengthen the position of public authorities acting in the public interest.

Public authorities are frequently the subject of attacks by disgruntled individuals (no doubt these individuals may also argue the benefit of the public interest defence!). The Act does not change the rule that public sector organisations cannot themselves bring a legal claim in defamation. But significantly, it does not place any further restriction on (a) public sector organisations underwriting personal claims made by their employees (b) companies providing public services suing or (c) public sector organisations taking other forms of legal redress.

Organisations working in the public sector can still take advice, and give consideration to a suitable form of reputation management response to published complaints.

Implications for insurers

The biggest issue - the often prohibitive costs of defending a defamation action to trial - is not expressly covered by the Act. The real changes here will be implemented by the Jackson reforms, which for defamation actions are scheduled to come into force in October. But the Act abolishes the presumption of trial by jury for defamation, which will reduce the costs of contested actions.

We anticipate that, by utilising the Acts provisions and with good early advice, in many cases an effective line of defence will be quickly established by making the right response to an initial complaint.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

Mark Daniels

Mark Daniels

Partner and Head of Business Services

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