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MARCH 2011

The Government launched its long awaited and keenly anticipated draft Defamation Bill ("the Bill") on 15 March 2011, with the objective of introducing new measures to preserve freedom of expression in the light of increasing concerns over the detrimental impact of defamation law on free speech.  Here are some of the key provisions:-

• Libel is currently actionable without proof of actual damage. The Bill imposes a pre-condition for all claimants in any libel claim to demonstrate that the publication has caused or is likely to cause substantial harm to the claimant’s reputation.

• The Government is particularly concerned about ensuring that publications on matters of public interest are adequately protected so as to advance responsible and serious investigative journalism.  In view of this, the Bill incorporates a new “public interest” defence which can be used by defendants in defamation cases.  A defendant would have to show that the statement complained of is or forms part of a statement on a matter of public interest and that he or she acted responsibly in publishing the statement.

• A new “single publication” rule is proposed which would operate to prevent a claimant from bringing a libel action in relation to publication of the same defamatory material by the same publisher after one year from the date of the first publication of that material. Effectively, this means that the first occasion on which a publication is made available to the public generally would be regarded for all purposes as the date of publication of each subsequent publication.

• One of the most celebrated aspects of the Bill is its evidently robust approach to libel tourism.  The Bill proposes that in cases where a statement has been published in both this jurisdiction and an overseas jurisdiction, a court would have to consider the wider global picture in order to decide where it would be most appropriate for a claim to be heard.  This will involve an analysis as to where the most damage to the claimant’s reputation was incurred. The rationale is to impede overseas claims, which often have a tenuous connection to England and Wales, from being pursued in the English courts.

Other measures in the Bill include codification of the current common law defences.  For instance, the new statutory defence of truth would replace the common law defence of justification and would apply if the defendant could show that the meaning conveyed by the statement is substantially true.  The proposed statutory defence of honest opinion, which would replace the common law defence of fair comment, would protect academics from being sued by companies and special-interest groups in matters of scientific debate – an issue of particular concern in recent years.

Although the Bill has been welcomed by many in favour as a positive step forward, it has also been greeted with considerable scepticism, particularly with regard to unresolved matters such as the scope of a corporate body’s ability to sue for libel.  The Government opened a period of consultation to explore until 10 June 2011.

Paul Herbert
Partner

If you would like any further information about the issues raised in the article please contact Paul Herbert (pherbert@gdlaw.co.uk), or any other member of Goodman Derrick LLP's media team on 0207 404 0606.

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