19-12-13

The New Defamation Act 2013 On I January 2014, the much anticipated and eagerly awaited Defamation Act 2013 (“the Act”) comes into force.
 
The Act makes a number of important changes to the law of defamation.  By way of summary, the Act provides for:
 
•           the introduction of a ‘serious harm’ threshold for libel actions, meaning that a complainant must now prove that he/she has suffered serious harm to his/her reputation before bringing a claim in defamation - for entities which trade for profit this will mean harm which has, or is likely to cause, serious financial loss (section 1);

•           the defences of truth, honest opinion and publication on a matter of public interest to be put into statutory form, repealing the corresponding common law defences of justification, fair comment and the Reynolds defence (sections 2-4);

•           the protection of peer-reviewed statements in scientific and academic journals by way of privilege (section 6) – it also provides certain additions to the privilege provisions of the Defamation Act 1996 (section 7);

•           a single publication rule (to curtail claims being brought outside the usual I year limitation period, as a consequence of republication and/or continuing visibility online – section 8);

•           measures about jurisdiction and actions against those not domiciled in the UK or another EU member state, so as to address so-called ‘libel tourism’ (Section 9);

•           trials of libel actions to be without a jury unless the court orders otherwise (removing the previous presumption in favour of a trial by jury – section 11); and

•           power for the Court to order that a summary of its judgment be published and to order that a defamatory statement be removed from a website or distribution of it ceased (sections 12 & 13).
 
The Defamation (Operators of Websites) Regulations 2013, made under section 5 of the Act, which sets out the details of the new defence for website operators, will come into force on the same date.  The Regulations will provide a framework for a new process dealing with online posts, which will provide a defence to website operators if they are not the author of the post and comply with certain requirements.  The procedure will enable the complainant to resolve disputes directly with the author or otherwise have the offending material removed.
 
The introduction of the ‘serious harm’ threshold is perhaps the most controversial and it remains to be seen whether this additional hurdle will simply serve to increase costs through satellite litigation into what exactly constitutes ‘serious harm’ to the complainant’s reputation.
 
For more information please contact Roddy Chisholm Batten on 0207 395 8431 or rchisholmbatten@clintons.co.uk.