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OCTOBER 2011

In March 2011 we reported the key provisions of the draft Defamation Bill (“the Bill”) http://www.gdlaw.co.uk/news-and-articles/Articles/media-news/defamation-bill

Public consultation on the Bill closed in June 2011 and on 19 October 2011 the Joint Committee (“the Committee”) published its recommendations. 

Although the Committee welcomes the Bill as a whole, it notes that it does not, as currently drafted, strike a fair balance between freedom of expression and the protection of reputation.  The Committee recommends that the Government places particular importance on freedom of expression when re-drafting the Bill.  For example, it is proposed that academics and scientists writing peer-reviewed articles are afforded greater protection against defamation claims.

A number of recent cases have given credence to the argument that only the rich have access to justice in defamation actions due to exceptionally high costs involved.  The Committee therefore proposes a series of reforms, including resolving disputes through mediation or arbitration rather than the courts, so that, theoretically, access to justice is more easily obtainable for ordinary citizens.

It is recommended that judges take an active role in case management at an early stage, before legal costs are incurred.  A stricter test requiring “serious and substantial harm” rather than “substantial harm” is proposed so that fewer cases can proceed to trial. 

In order to keep up with developing technology on the internet and social networking sites, the Committee recommends a quick and inexpensive remedy for those defamed online.  A new notice and take-down procedure is proposed to cover defamation in the online environment.  Where an identifiable author has written the material complained of, the Committee recommends that a host or service provider be obliged to publish a notice of complaint alongside that material.  A complainant may also apply to the court for a take-down order. It is recommended that hosts and service providers take down allegedly defamatory material written by anonymous authors immediately upon receipt of a complaint.

In order to limit the possibility of corporations using financial muscle to silence critical comment, the Committee recommends that corporations must demonstrate they have suffered “substantial financial harm” and obtain the permission of the courts before being entitled to bring a claim in defamation.

The Committee notes that an update of the law of defamation is long overdue and recommends that the Government quickly revises the Bill by adopting the Committee’s proposals.

Ellen Gallagher
Solicitor

If you would like any further information about the issues raised in this article please contact Ellen Gallagher (egallagher@gdlaw.co.uk), or any other member of Goodman Derrick LLP’s Dispute Resolution team on 0207 404 0606.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice.