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Draft Defamation Bill - Consultation Response from Libel Reform Campaign

Draft Defamation Bill - Consultation Response from Libel Reform Campaign

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Published by English PEN
In 2011 the Ministry of Justice published a draft Defamation Bill for consultation. The Libel Reform Campaign submitted a response to the consultation, offering recommendations to improve the draft bill.
In 2011 the Ministry of Justice published a draft Defamation Bill for consultation. The Libel Reform Campaign submitted a response to the consultation, offering recommendations to improve the draft bill.

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Published by: English PEN on May 16, 2012
Copyright:Attribution Non-commercial


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 We would welcome responses to the following questions set out in the consultation paper.You can return this questionnaire by email to defamation@justice.gsi.gov.uk or in hard copy to Paul Norris, Ministry of Justice, Legal Policy Team, 6.38, 102 Petty France, London,SW1H 9AJ 
Draft Defamation BillList of questions for response
Question 1. Do you agree with the inclusion of a substantial harm test in the Bill?
 Yes, but the proposed clause needs to be improved to be effective inpreventing trivial or bullying claims.Under the current law, “early strike out” can often take months and cost tens of thousands of pounds. This means that trivial or weak claims still produce a chillingeffect and deter authors and publishers from defending material that is defensible or likely to be found not defamatory.The proposed threshold of harm test, if strengthened, would deter the initiation of weak or hopeless actions, reduce costs and prevent this chill. Elsewhere in theresponse below we propose the availability of a Declaration of Falsity as a remedythat may be sought by the claimant in libel cases, which would contribute further tothese outcomes.We recognise the possibility that more rigorous early assessment of cases might leadsome lawyers to ‘front-load’ costs. This would be reduced by the amendments set outunder question 2 to strengthen this test so that the court can reduce time spent (andcost) in consideration of other aspects of weak or frivolous cases.It is not clear whether this test isa) a compulsory hurdle which would involve potential costs and court time evenwhen there is no desire by the defendant to test the claimant’s case in this wayb) whether the position on evidence being heard and judged (raising costs) is thesame under this test as under the Common Law where witnesses not usuallycalled on strike out applicationsBoth these have implications for the possible front-loading of costs. It seems that thistest will only be of benefit to defendants if it is only triggered by an application of the
defendant, and where the claimant is not able to insist on the hearing of witnesses atthis early stage.
Question 2. Do you have any views on the substance of the clause?
It is not yet satisfactory. The test must be made meaningful and effective in order todeter trivial and hopeless claims and to avoid unnecessary frontloading of costs for the claimant and defendant. The current drafting is inadequate because:
It provides less of a hurdle than the existing common law.
The test is not yet effective enough to counteract any greater potential for front-loading of costs.
It is a missed opportunity since a meaningful threshold of harm test would beeffective at deterring weak and vexatious claims.We have five proposals to bring this test into an effective harm test:I. The test should be defined as ‘serious
and substantial 
’. Substantial in lawmerely means non-trivial or negligible, while serious means that it is seriousenough to bring before a court. The inclusion of ‘serious’ makes the test moreobjective and would require the court to come to its own view on the level of harm. Existing case law talks of serious harm as the test, and a substantialharm test could end up being a lower test than is available in common law.II. The clause should incorporate the common law stipulation (
Jameel v Dow Jones
) that no case should proceed where: there is no real prospect of vindication, or the vindication obtained – such as it is – is likely to bedisproportionate to the cost of achieving it. This provision has been moreeffective than the serious harm threshold in allowing weak cases to be struckout. It responds to the ECHR Article 10 requirement that interference withfreedom of expression should be proportionate.III. Harm to reputation from publication in this jurisdiction must be judged havingregard to the extent of publication in other jurisdictions. There should be aprovision such as that set out in Clause 13 of Lord Lester’s Bill:
13 Harmful event in cases of publication outside the jurisdiction(2) No harmful event is to be regarded as having occurred in relation to the claimantunless the publication in the jurisdiction can reasonably be regarded as havingcaused [serious and] substantial harm to the claimant’s reputation having regard tothe extent of publication elsewhere.
This would protect authors or publishers domiciled in the EU (so not coveredby Clause 7 of this Bill) from claimants with a reputation elsewhere in
circumstances where the majority of publication is outside England and Wales(and perhaps outside the EU if that is needed for compliance with the BrusselsI convention) such that the proportion here does not cause serious andsubstantial harm.IV. There should be mandatory strike out in the event of the claim not passing the‘serious and substantial’ test, as proposed in the Lester Bill. The currentdiscretionary approach leaves open the threat that frivolous or hopeless casesmight proceed. This means such cases have a chilling effect on legitimateexpression due to uncertainty.V. Clause 1 should include a definition of ‘defamation’ or a statutoryinterpretation of ‘defamation’ to replace arcane definitions in case law. Thiswould deter the bringing of trivial cases which restrict free expression in thearea of parody or ridicule or where there is no real damage to reputation.In
Thornton v Telegraph Media Group Ltd 
[2010] EWHC 1414 QB
, Tugendhat J set out thedefinitions of defamation from the last 200 years and concluded that some of those definitions were, taken on their own, not sufficiently damaging as to bedefamatory.This first instance judgment is valuable in common law terms but has not beentested in the higher courts. Statutory clarification would serve to make theterms “serious and substantial” more meaningful and would also serve toreduce re-argument of points already made by judges in the lower courts.We will submit supplementary details on the definition of defamation.
Question 3. Do you agree that the Slander of Women Act 1891 and the common law rulereferred to in paragraph 6 should be included among the measures for repealin the Repeals Bill?
Comments: Yes.
It could be included in the repeals schedule in this Bill.
 Question 4. Do you agree with the inclusion of a new public interest defence in the Bill?Do you consider that this is an improvement on the existing common lawdefence?
  Yes we agree with the inclusion of a new public interest defence. However the oneproposed is not a significant improvement on the inadequate common law defence.

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