The Defamation Act 2013 is due to come fully into force on 1 January 2014. This note highlights the provisions that are most relevant to entities that provide public services or perform public functions who are seeking to protect their own reputation or that of their officers and employees, and also to those organisations who find themselves on the receiving end of a defamation claim.
The Act is intended to rebalance the law on defamation to provide more effective protection for freedom of speech while ensuring that people who have been defamed are able to protect their reputation. It introduces a number of new statutory defences, including a new defence for those organisations that host user generated content on their website, and it abolishes the old common law defences of justification, fair comment and Reynolds privilege.
Requirement of serious harm (s.1)
Although, under the common law, there is currently a threshold of seriousness test (the purpose of which is to exclude trivial claims), the Act raises the bar by introducing a requirement for the claimant to prove that publication of the statement complained of has caused, or is likely to cause, serious harm to the reputation of the claimant. Harm to the reputation of an organisation that trades for profit is not "serious harm" unless it has caused, or is likely to cause, serious financial loss. Unless the claimant provides evidence to satisfy that requirement, the court will find that the statement is not defamatory.
It is worth pointing out that the Defamation Bill included a sub-provision which extended the rule in Derbyshire (which prevents local authorities and certain other public bodies from bringing a defamation claim in their own name) to cover all "non-natural legal persons performing a public function" and which would have prevented those entities from bringing a claim in relation to that function. However, Parliament (in our view, sensibly) declined to include that provision in the Act preferring the courts to develop the Derbyshire principle as they consider appropriate and necessary in the light of individual cases. This means that a number of entities that provide public services or perform a public function and that do not obviously fall within the scope of the rule in Derbyshire may be entitled to bring a defamation claim in their own name provided the requirement of serious harm is shown.
This section replaces the common law defence of justification with a new statutory defence of truth. Under s.2, it is a defence for the defendant to show that the imputation conveyed by the statement complained of is substantially true. This is intended to broadly reflect the common law defence (which requires a defendant to prove the essential or substantial truth of the "sting" of the words used), while simplifying and clarifying certain elements.
In order to succeed in this defence, the court will first need to determine the imputation (or meaning) actually conveyed by the statement complained of (it seems that the existing common law rules on meaning will act as guidance in this respect). The defence will only apply where the imputation is one of fact, not opinion.
Honest opinion (s.3)
This section replaces the common law defence of fair (or honest) comment with a new defence of honest opinion. It is intended to broadly reflect the common law defence but there is no longer a requirement for the opinion to be on a matter of public interest (although, in practice, very few defences where the fair comment defence was deployed failed on the basis that the statement was not on a matter of public interest). The defence of honest opinion will apply where the defendant can show that the following three conditions are met:
- that the statement complained of was a statement of opinion;
- that the statement complained of indicated, whether in general or specific terms, the basis of the opinion; and
- that an honest person could have held the opinion on the basis of any fact which existed at the time the statement complained of was published (or anything asserted to be a fact in a privileged statement published before the statement complained of).
The defence is defeated if the claimant shows that the defendant did not hold the opinion.
Publication on a matter of public interest (s.4)
This section creates a new statutory defence of publication on a matter of public interest where the publisher reasonably believed that publication of the statement was in the public interest. It is based upon the common law defence established in Reynolds (which is expressly abolished by the Act) and subsequent cases.
In order to succeed in the defence:
- the defendant must show that the statement complained of was (or formed part of) a statement on a matter of public interest. The Act does not define what is meant by "public interest" although there is a substantial body of case law where this concept is well established and which will remain good guidance. It includes, for example, the conduct of government and political life, public administration, and the governance of public bodies; and
- the defendant must have believed that publishing the statement was in the public interest and he must show that the belief was reasonable.
The court must have regard to all the circumstances of the case so it seems likely that, in determining the second limb of the test, the court will be guided by the existing case law around whether the defendant has acted responsibly in publishing the statement complained of.
Those intending to make available (to the general public) material that is likely to contain statements that defame an individual or organisation will need to carefully consider not only whether the material is on a matter of public interest but whether publication of the statements is in the public interest. Those are two very different questions.
Website operators and user generated content (s.5)
It is already well established that an organisation or individual that controls or operates a website is jointly liable with the author for any defamatory user generated content ("UGC") posted on the website as soon as the owner or operator is notified of the defamatory material or becomes aware of the unlawful nature of the material. The owner and operator will, however, have a defence to a defamation claim if it removes the content on receipt of that notice, provided it did not moderate the content and played no more than a passive role in relation to the publication of that material. Those defences survive the Act and, in fact, s.10 of the Act provides an even stronger defence for owners and operators who do not edit or moderate UGC where it is "reasonably practicable" for the claimant to pursue the author direct.
Section 5 of the Act and the Defamation (Operators of Websites) Regulations 2013 create a new defence for website operators who did not "post" the statement complained of. This defence is intended to assist those operators who engage in light moderation of UGC, although the point at which "moderation" becomes "posting" (such that the defence cannot be relied upon) is unclear and will no doubt be the subject of litigation. Although (in the Government's own words) the regulations are "designed to be straightforward", they are not; it is very likely that disputes will arise over whether a complainant, the website operator or respondent has discharged their respective obligations under the regulations.
Where the author of the statement is identifiable, s.5 acts as a complete defence. Where the author of the statement is not identifiable, and where the website operator receives a complaint about the statement, in order to keep the defence the website operator must comply with steps and timeframes set out in the regulations. The purpose of s.5 is to allow the claimant to deal directly with the author of the statement although the court has the power (under s.13 of the Act) to require a website operator to remove a defamatory statement where it gives judgment for the claimant in a claim involving only the claimant and the author.
In practice, it is likely that most posters will fail to respond to complaints or fail to provide contact details to the website operator. In those cases, the website operator is obliged to remove the offending material. However, in some cases, the poster will respond but the process might end in frustration for the complainant as the author of the statement can refuse his consent to the statement being removed and his contact details being provided to the complainant. In those circumstances, the complainant will be no closer to determining the identity of the author (so that he can resolve the claim directly with the author) and he will have no cause of action against the website operator (who will have a complete defence under s.5). He will also have wasted nine days taking those steps whilst the statement remains online. The complainant would need to apply to the court for an order requiring the website operator to disclose the author's identity and contact details.
Where an author re-posts the same (or very similar) material on the same website on two or more occasions, the website operator is obliged to remove the material from the website within 48 hours of receiving the complaint. This avoids the need for the complainant to follow the same process repeatedly in situations where the poster persistently re-posts defamatory material. A website operator is also obliged to remove the material complained of within 48 hours if, in response to a complaint, the poster provides a name and address that the operator considers are obviously false. These provisions will be welcomed by complainants.
Prudent website operators who host UGC will need to urgently update their processes to ensure that they can respond quickly to any complaints made under the regulations within the very short timeframes set out in the regulations. This may include setting up a designated complaint email address and providing complainants with access to a template complaint form. It may also be prudent for operators to collect appropriate contact details from posters, and to verify the email address provided, before allowing a posting to be published.
Complaints to the new press regulator(s)
Instead of bringing a claim under the Act, an organisation or individual defamed by the media may be entitled to file a complaint with the new press regulator (or regulators, as the case may be).
Under the Royal Charter on Self-Regulation of the Press (granted by the Privy Council on 30 October 2013) a complainant will be entitled to complain to the new regulator if they consider that a media organisation has breached the code of conduct. The complaint would be determined via a low-cost arbitration system and the new regulator could impose fines of up to 1% of turnover (capped at £1m) and can order a story to be corrected. Commercial websites and weblogs that contain news-related material are likely to be covered by the regulator's reach provided they opt into the system. Third parties (in addition to those directly affected by a story) will also be entitled to bring a complaint.
The problem with the Royal Charter is that regulator has not yet been set up, the code has not been devised, and media organisations are free to elect whether or not to join the new system although there are incentives for joining (including the avoidance of exemplary damages and some costs protection if a defamation claim is pursued). In the meantime, the media industry is pressing ahead with its own replacement for the Press Complaints Commission (PCC); the Independent Press Standards Organisation (IPSO). IPSO, which is expected to launch in spring 2014, has the support of the majority of the media industry.
It therefore remains to be seen what the take-up will be and whether the rival systems will provide a cost-effective and just remedy for those organisations and individuals defamed by the media.