Defamation Amendment Bill 2010 - Analysis

This is a swift analysis of the Bill published today, introduced by Lib-Dem peer Lord Lester as a Private Member's Bill.

As I mentioned earlier, this first thing that struck me was Section 1 which establishes a statutory defence of publication in the public interest, and it seems to be based on the Reynolds defence.

Prior to this, the defence was one at Common Law, developed by judges and stemming from the case of Reynolds v Times Newspapers. The difficulty with Reynolds for publishers is that it is a defence where there is almost an acceptance that you have to fight in court to get it. Unlike the other privilege defences, which often head a case off before it has even got to court. There are so many hurdles to Reynolds that it if you as a publisher want to claim it, you have to accept that your journalistic practices are going to be scrutinised in court in order to establish whether you get Reynolds or not.

This Bill in Clause 1a and 1b establishes a defence if the matters were published in the public interest and the defendant acted responsibly in doing so. However, it then goes on to define reponsible publication and use some, but not all, of the language of the 10-steps of the Reynolds defence described by Lord Nicholls in that case.

When the Ministry of Justice working party on libel reform reported on this it stopped short of recommending the codification of Reynolds. Instead some of its members, notably those representing NGOs, writers and the scientific community, recommended that consideration be given to a new public interest defence where publication dealt directly with politics, science, commerce, sport healthcare, the environment, public administration or was a form of artistic impression and that any relevant professional codes and standards had been followed by the publisher.

I'm not especially advocating the working party plan, but it's interesting that Lord Lester's Bill goes for a Reynolds model rather than a new defence.

The second thing of note is that in the the second clause of the Bill the defence of fair comment is renamed as honest opinion. This is a more accurate title for the defence, and has been described thus by judges in such cases as Branson v Bower [2002] QB737. It's worth noting that the Bill in describing how a defence of honest opinion is established says at 3(6)c it does not matter whether the facts that led to the opinion are included in the publication or not. So, if you had this defence, you would not need to publish: This is what I think and this is why I think it.

Clause 4, eminently sensibly changes the name of the defence of Justication to Truth.

A defendant would have to show words to be true, or capable of a less serious meaning, according to the Bill. Note that the Bill does not reverse the burden of proof as regards truth. The onus is still on the defendant to show the truth of what they have published if that is their defence.

The defences of absolute privilege and qualified privilege in the Bill look broadly similar to the existing defences, as do the schedules defining what they cover.

Clause 9 of the Bill is interesting in the defence it provides for broadcasters and websites where they are not the authors or editors of the defamatory material. A claimant is required to give notice of the words complained of; why they are defamatory; what is untrue and why they are harmful. The defendant the has a notice period of 14 days from receipt to remove the offending material.

Clause 10 would appear to answer the concerns of those publishing on the internet by stating that as long as what you publish is by the same person and has materially the same content, then the date it was first made available to the public is the first date of publication.

Clause 11 makes an important change in requiring corporate bodies who want to sue for libel to show substantial financial loss.

Clause 12 continues that theme in requiring the court to strike out an action for defamation unless the claimant shows substantial harm of the likelihood of substantial harm to their reputation.

That's a brief summing up of the points of interest from a quick reading today. I'm sure others will find more to chew on in the days and weeks to come.

What happens now depends on whether the coalition government uses Lord Lester's Bill as a template for reform and gives it parliamentary time, or whether they want to introduce their own Bill, as promised in the Queen's Speech.