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DEFAMATION- Essay question

Defamation is a tort which protects the claimant’s reputation. The requirements to have successful claim
defamation are the statement must be defamatory, it must be referred to the claimant and it must be published.
Paragraph 2 of Article 2 expressly states that the exercise of freedom of expression must be weighed against the
need to protect the reputation or rights of others. Many scholars believed that the law that existed prior to the
enactment of the Defamation Act 2013 was tilted towards protecting the claimant’s reputation. A balance
between the two overriding objectives can be achieved if the requirements of defamation are more restrictive and
the defences are less restrictive to prove. Thus this question requires an in depth analysis on the requirements of
defamation and the defences in light of the changes made with the Defamation Act 2013.

Section 11 abolishes the presumption in favour of a jury trial, a move which the judiciary was already starting to
make in practice. In addition, section 12 provides the court with the power to order a summary of its judgment to
be published. The wording of the summary as well as the timing and manner of its publication are to be agreed by
the parties. In the absence of agreement the court will give directions. Publication of a judgment in a successful
claim can be a powerful remedy for a claimant and can go a long way to rectifying the damage done by the
defamatory statement.

In relation to the first requirement namely ‘the statement must be defamatory ‘was defined by Lord Atkin in Sim v
Stretch namely that a statement is defamatory if the words are ‘ words tend to lower the plaintiff in the estimation
of right thinking members of society generally. In the more recent case of Berkoff v Burchill ( 1996) , in which the
plaintiff was described as ‘ hideously ugly, it was held by the Court of Appeal that although insults did not diminish
a person’s standing were not defamatory, a statement could be defamatory if it held up the plaintiff to contempt ,
scorn or ridicule , or tended to exclude him from society, even if the statement did not impute disgraceful conduct.
Further in Hartt v Newspaper Publishing plc ( 1989 ) , the Court of Appeal held that in determining the meaning of
the words, the approach adopted should be of a hypothetical reader who was neither naive or unduly suspicious ,
but who might read between the lines and be capable of loose thinking. The test was adopted by the Privy Council
in Bonnick v Morris (2002) the test was objective , one of a right thinking member of society. The second
requirement ‘ the statement must be referred to the plaintiff’ , did not require the claimant to be referred to by
name – it is sufficient that the statement could be understood to refer to him.; Cassidy v Daily Mirror (1929) and
Morgan v Odhams Press (1971)

The old law was very vague. It did not explain the extent to which ones reputation must be affected to have
a successful claim for defamation. Prima facie,it allowed for provided frivolous claims. The new act provided
for additional requirement. According to section 1 of the Defamation in order to sue for a defamation
 action, the claimant must suffer serious harm to his reputation. Now, not only does a statement have to
have a negative upon a reputation in the minds of the average person in the street or expose the
complainant to hatred or ridicule, it also has to be at least likely to cause “serious harm” to that reputation.
For corporate claimants which trade for profit, that harm must be at least likely to cause serious financial
loss. As such , it will allow individuals to exert their right of freedom of expression.

Theoretically it was a change to the law of Defamation. However practically, this new element is in fact only a
reflection of the fact that the Court have increasingly (mainly as a result of the Jackson reforms but also as a result
of several key cases) struck out trivial defamation claims more readily. The real devil, of course, lies in the detail –
“serious harm” is not defined. This won’t be much of a problem for individuals as most claimants who take
defamation cases to trial would only do so over the most serious of allegations, but it’s fair to say that the lack of
clarity on what serious harm actually is will lead to satellite litigation for the foreseeable future and find many
potential claimants opting to wait for some interpretative judgments before taking action to protect their reputation.
As for Corporate Claimants, the issue over what constitutes “serious financial loss” is likely to be even more complex.
Are we talking about a drop in share price, diminution of goodwill, loss of profits or loss of trade? Many businesses
may be forced to let a defamatory accusation go unchallenged in an attempt to be able to show serious financial
damage or retain forensic accountants to make the loss out, thereby only increasing the cost of dealing with the
issue.

Thirdly, Statements will only harm the reputation if third parties are aware of them. Publication, that is
communication of the libel or slander to a third party, is therefore a vital component of tort. If it is reasonably
foreseeable that the statement might come to the knowledge of a third party, publication will exist;Theaker v
Richardson (1982).Prior to the new Defamation Act 2013, repeating a defamatory statement will be regarded as a
further publication, leading to liability. The original defamer may however, still be found liable for the repetition if
he or she has : authorized or requested publication , intended that the statements should be repeated or
republished , or informed a person , who is under a moral duty to repeat or republish the statement. The original
defmamer will thus remain liable if the republication is, on facts, the natural and probable result of the original
publication: Slipper V BBC .

However, the new act seeks to reduce a claimant's ability to sue even further by introducing the "single
publication rule" at section 8. Previously, each time a defamatory statement was published it was treated as a
new publication, and so a new limitation period began to run. This allowed claimants more bites of the cherry,
particularly in the context of an Internet publication where each "hit" on a webpage was treated as a new
publication. The new act takes a more realistic approach, preventing action being taken against a publisher more
than a year after the content is first published. However, section 8 does not interfere with a claimant's right to
claim against an additional defendant if the defendant republished the content, or against the original
defendant/publisher if they published the content in a materially different way.

Linked to the section 8 restriction on claimants, section 10 of the new act prevents claimants from bringing a
defamation action against secondary publishers (e.g., booksellers), except where it is not reasonably practicable
to bring an action against the author, editor or publisher.

Previously courts were burdened with libel tourists bringing actions for defamation in the English courts.There may
be some truth in their outrage, as the upshot of this tourism is that some U.S. states have been driven to pass
specific laws to prevent "unreasonable" libel rulings made in British courts from infringing on their own rights to
freedom of speech. Section 9 of the new act seeks to address this problem, ensuring that a court cannot hear the
case of a defendant who is not domiciled in the UK or another EU or Lugano Convention State unless it is satisfied
that of all the places publication has taken place, England and Wales is clearly the most appropriate. Whilst this
new provision does not implement any de minimus level of publication, it is intended that the court will look
holistically at publication, rather than focus on the damage which has occurred in this jurisdiction. And indeed, in
reality, the courts were already taking this approach.

It can thus be seen that the liability for defamation has been limited scope, now our direction must turn towards
the defences that will limit liability and preserve freedom of speech. The previous common law defences of
"justification" and "fair comment" were confusing misnomers which added unnecessary mystique to this area of
law. Section 2 of the new act replaces the defence of "justification" with the much more straight-forward statutory
defence of "truth". However, the defence is demonstrably the same and simply requires the defendant to show
that the imputation conveyed by the statement complained of was substantially true; Wakley v Cooke

The defence of fair comment served to protect defendants who seek to criticize claimants, provided they act fairly
and base their comments on true facts. It clearly supports freedom of expression within a controlled environment.
Fair comment had three requirements: the statement must be in the public interest ; London Artistsv Littler [1969]
the statement must be a comment on true facts , Kemsley v Foot [1952] and the comment must be fair and honest
; Reynolds v Times Newspaper. Likewise, section 3 replaces the previous common law defence of "fair comment"
with "honest opinion". Once again this "say what you see" defence is largely self-explanatory, requiring the
defendant to show that the statement was an expression of opinion and not fact, that the statement indicated
what the opinion was based on, and that the opinion was one which an honest person could have held, based on
the facts in existence at the time. Importantly, under the wording of the new defence, it appears that the
commentator need not know the fact upon which an honest person could have held the opinion, at the time the
statement was published. This releases the defence from one of the previous shackles which sometimes made it
difficult to rely on. The previous requirement that the comment be in the public interest does not appear either,
thereby enhancing the right of freedom of expression.

The defence of privilege takes two forms : absolute privilege and qualified privilege. Statements made on certain
occasions carry absolute privilege- that is , no liability will attach to them , no matter how false or malicious they
maybe. Such occasions include statements made in Parliament, in judicial proceedings and in official
communications . It can thus be seen that there virtually no restrictions on freedom of speech on such occasions.
Thus the new act did not have to address the defence of absolute privilege. However it did make changes to the
qualified privilege as it was more or less the weaker defence.

At common law, it was for the judge to decide whether the occasion is a privileged one, and whether a reasonable
jury could find that the author’s dominant motive was malice. The jury will decide whether any allegation of malice
was proved In Reynolds v Times Newspapers Ltd [2001] , the House of Lords firmly rejected any general head of
qualified privilege. The court would instead look at each case individually . However, Lord Nicholls did give some
guidance. In future, courts should consider a number of factors in deciding whether a duty to publish political
discussion could be established namely : the seriousness of the allegation, the nature of the information –is it a
matter of public concern ?, its source, what steps had been taken to verify the information ,the status of
information , that is , how reliable is the report ? the urgency of the matter , whether comment is sought from the
claimant , the tone of the article , whether the gist of the claimant’s side of the story has been told and the general
circumstances and timing of the publication. The Reynolds is not an easy test to apply. The test is one of ‘
responsible journalism ‘ and it is for the newspaper, with reference to the 10 criteria listed above, to demonstrate
to the court that they deserve the defence of qualified privilege.

In essence, the Reynolds privilege is abolished under the 2013 Act. Instead, it will be “a defence to an action for
defamation for the defendant to show that — a) the statement complained of was, or formed part of, a statement
on a matter of public interest; andb) the defendant reasonably believed that publishing the statement complained
of was in the public interest.”In the new defence, there is no express requirement for the publisher to prove that
it: has met a standard of responsible journalism; satisfied any or all of the Reynolds factors; oracted both fairly and
responsibly in gathering and publishing information.Instead, assuming that the statement was on a matter of
public interest, the issue will boil down to the defendant’s reasonable belief. Instead, assuming that the statement
was on a matter of public interest, the issue will boil down to the defendant’s reasonable belief. In deciding this,
“the court must make such allowance for editorial judgement as it considers appropriate”, as well as “all the
circumstances of the case”. The defence seems on its face to be more flexible and more in favour of free speech
than Reynolds. However, our view is that the court is likely to end up considering similar factors to those in
Reynolds on the question of reasonable belief and we may be back to Reynolds, Jameel and Flood more or less,
under a different name.

An associated defence under section 6 provides a defence for publications in scientific or academic journals. The
defence deems such publications as privileged and therefore outside the scope of a defamation claim if the
publication was independently reviewed by the editor or a peer.

Perhaps most importantly, the new act clarifies and extends the defences afforded to website operators.
Previously, the 1996 Act afforded protection to website operators who were not the author, editor or publisher of
the statement, who took reasonable care in relation to its publication and did not know, and had no reason to
believe, that what they did caused or contributed to the publication of a defamatory statement. However, in
practice Internet service providers found it difficult to meet the required tests of showing reasonable care and/or
that they had a lack of knowledge. In an attempt to clarify the situation, section 5 of the new act provides that
where an action is brought against the operator of a website in respect of a statement posted on a website, a
defence can be raised if it can be shown that the operator did not post the statement on the website. However,
the defence will be defeated if the claimant can demonstrate that it was not possible to identify the original poster
of the statement, that they gave notice of the complaint to the operator, and that the operator failed to respond.

At common law, judges have been reluctant to grant injunctions prior to trial .This would amount to a restriction of
freedom of speech without the benefit of full consideration by the court. As stated in Bonnard v Perryman [1891] ,
the court has the jurisdiction to restrain by injunction the publication of a li9bel , but the exercise of this
jurisdiction is discretionary. An interlocutory injunction should therefore not be granted except in the clearest of
cases , and should not be granted when the defendant swears that he will be justify the libel, and the court is not
satisfied that he may not be able to do so.

The act also brought safeguards to protect the defendant’s reputation. Section 13 enables the court to order a
website operator to remove a defamatory statement posted on its site, but only if the operator cannot take
advantage of the new defence under section 5 of the act (explained below). Section 13 also allows the court to
order any person who was not the author, editor or publisher of the defamatory statement to stop distributing,
selling or exhibiting material containing the statement.

In conclusion, it can be argued that only the form and not the substance of the law has been upgraded. In relation
to S 1 (2), the defamatory statement must cause serious harm, this new legislative requirement sets the test in
stone, it does not offer any tangible yardstick for the judiciary to work against. Therefore it is difficult to see that
the courts will approach cases in a different manner to previously. The defence of truth is also more or less the
same as justification. However it can be argued that the new act was more flexible with regard to the defence of
fair comment as it no longer required a public interest. Thereby it promoted the right of freedom of expression.
The modification of the Reynold’s requirement has made it more accessible to prove its defence. Thus, it can be
claimed by the modification of Reynold’s defence ie qualified privilege and alteration of the fair comment defence
the new act has ensured further improvement to the right of freedom of expression. However, it is not a
revolutionary change as some claim it to be.
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