A programme has been commissioned about the closure of a large manufacturing company. The programme-makers interview some employees who have lost their jobs. Some of those interviewed criticise the management of the factory and blame the directors for the company's demise. The company is named and the directors, of which there are only a handful, are identifiable. In addition, a couple of interviewees talk about the directors' incompetence in making specific business decisions which turned out to be damaging to the company. One of the interviewees suggests that the directors stole money from the firm.

To suggest that the directors are incompetent is defamatory. If these comments are to remain in the programme, the programme-makers must first find out on what basis the interviewees make the allegation i.e. what are the damaging business decisions he refers to? The programme-makers would then need to make proper, rigorous journalistic enquiries to corroborate the facts i.e. that in fact these business decisions were made, that they were damaging to the company, that they were made by the directors (each of them) and that a competent director in the same circumstances would not have made such a decision. These facts might be corroborated by speaking to others that have direct knowledge of what happened or perhaps there is documentary evidence, for example copies of letters, company resolutions, and emails. The programme-makers may also need to speak to an expert in business matters for confirmation and an explanation of why the decisions that were taken could be classed as incompetent.

If the programme-makers were unable to corroborate the facts, it is likely that the comments would not be able to be included. However, if they were corroborated satisfactorily and the interviewees' comments seemed reasonable based on the facts (which are provable), then, but only then, should the programme makers/broadcaster move towards seeking a response from those that were criticised.

Comments about directors stealing money are of course highly defamatory. On what basis is the allegation being made? What proof does the person making the allegation actually have? Is it just rumour, unsupported by evidence or hard facts? Are we in possession of any documents which help prove the allegations, for example letters, emails, bank statements?

A broadcaster would need convincing evidence, that is convincing testimony of reliable witnesses of fact and/or documentary evidence to prove this allegation before moving towards seeking a response from the subject(s) of the allegations.

The Defamation Act 2013 – the Main Changes

Serious Harm. There is a new test for determining whether a statement is defamatory. The Defamation Act 2013 (“the Act”) provides that a statement is not defamatory unless publication has caused or is likely to cause serious harm to the reputation of the claimant. For “bodies trading for profit” e.g. companies, harm is not to be considered ‘serious harm’ unless “it has caused or is likely to cause serious financial loss”. This provision is intended to set a higher bar than the law it supersedes which required that claims should not be trivial, and that to be defamatory a publication would require a likelihood of substantial adverse consequences for the claimant. What measure of harm qualifies and amounts to ‘serious harm’ will have to be decided in individual cases.

Truth - a new statutory defence. The Act contains a new defence to an action for defamation: truth – “It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.” At the same time the Act specifically abolishes the old common law defence of justification. Whilst the new defence of truth reflects the old law, requiring the defendant to show that the statement complained of is substantially true, abolishing the latter is likely to lead to considerable uncertainty, at least in the short term. The common law contained numerous rules and answered many questions which the new defence does not attempt to answer. Furthermore, the ambit and parameters of the ‘common law of justification’ are not entirely clear and it will be for the courts to decide whether and to what extent old rules are retained.

Honest Opinion – a new statutory defence. A new defence of ‘honest opinion’ replaces the old common law defence known until relatively recently as ‘fair comment’, which is abolished. The new defence is similar to fair comment – it states that it is a defence to an action for defamation for a defendant to show that: 1) the statement is one of opinion (as opposed to fact); 2) the statement indicates, either in general or specific terms, the basis of the opinion; and 3) an honest person could have held the opinion on the basis of any fact which existed at the time of publication or anything asserted to be fact in a privileged statement published before the statement complained of. The requirement that the statement be about a matter of public interest is not retained. See Honest Opinion in FAQs below.

Publications on matters of public interest. A new ‘public interest’ defence is created by the Act which covers both statements of opinion as well as fact - “It is 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; and (b) the defendant reasonably believed that publishing the statement complained of was in the public interest.” The new defence is intended to replace and improve upon the common law defence which had developed relatively recently and which had come to be known as the ‘Reynolds Privilege’ defence, which the Act expressly abolishes.

Privilege. As noted above the law has traditionally recognized that there occasions where it is in the public interest that a person should not be liable for publishing a defamatory statement, irrespective of whether he or she can prove the truth of the statement or defend it as honest opinion. Such occasions are said to be ‘privileged’, either absolutely privileged or protected by qualified privilege. Most of the law relating to privilege is unaffected by the Act. However, the Act does widen its applicability in a number of important respects. Prior to the Act, absolute privilege attached to fair and accurate, contemporaneous reporting of court proceedings held in public, with such privilege being limited to UK court proceedings, proceedings of the European Court of Justice, the European Court of Human Rights and certain international criminal proceedings. The Act extends this absolute privilege to court proceedings worldwide and to any court or tribunal established by the Security Council of the United Nations or by international agreement, irrespective of whether the UK is a party.

Section 15 of an earlier Act, the Defamation Act 1996, confers qualified privilege on a host of communications list in Schedule 1 to that Act. Section 7 of the Act extends the types of communications in Schedule 1 (in particular within Part II of Schedule 1) attracting qualified privilege. Furthermore, the Act explicitly confirms that peer reviewed statements in scientific or academic journals attract qualified privilege (subject to a number of conditions being fulfilled).

Websites. The Act provides a new defence for the operators of websites: it is a defence for the operator to show that it was not the operator who posted the statement on the website. However, the defence is defeated if 1) it is not possible for the claimant to identify the person who posted the statement on the website; 2) the claimant complains in a ‘Notice of Complaint’ to the operator of the website; and 3) the operator fails to respond in line with certain regulations. Those regulations are contained within the Defamation (Operators of Websites) Regulations 2013/3028. In summary, the regulations require that operators comply with procedures which involve informing the poster of the Notice of Complaint and either removing the statement complained of from the website within a specified time or, if the poster does not wish for the statement to be removed, providing the claimant with the name and contact details of the poster, so that legal action can be taken against that person directly. The defence expressly applies both to un-moderated and moderated websites. The defence will be defeated and the operator will be liable, however, even where the claimant is able to identify the poster, where the claimant is likely to be able to establish that the operator acted with malice in relation to the posting of the statement. As to how exactly the courts will interpret malice in the context of this section remains to be seen. Former defences available to website operators e.g. those contained within the Electronic Commerce (EC Directive) Regulations 2002 and section 1 of the Defamation Act 1996 remain in force.

The Single Publication Rule. English defamation law has traditionally treated every defamatory publication as giving rise to a fresh cause of action. In other words, if a broadcaster transmitted a programme defamatory of a particular individual and then repeated that programme six months later, the individual would be entitled to sue in respect of both publications; and if successful potentially receive damages for both. This was known as the “multiple publication rule”. This rule had particular consequences favourable to claimants, meaning they could recover damages in respect of multiple publications. It also meant that if a claimant was too late to sue in respect of an earlier publication because he or she had not sued within the requisite time (claimants in defamation claims must issue proceedings in England and Wales within 1 year of publication) they might be able to sue in relation to a later publication which still fell within the 1 year rule.

The Act reforms the law and states that where there is an initial defamatory publication to the public and one or more later defamatory publications which are not materially different, any cause of action the claimant may have will be treated as having accrued on the date of the first publication. In effect this means that if a broadcaster transmitted a programme containing a defamatory statement on 1 June in a particular year and repeated it on 1 December, the limitation period, that is the time period in which the claimant must sue, would run from 1 June. The claimant would have to sue in respect of both the first transmission and the repeat by 1 June the following year. Under the old law the claimant could theoretically have sued over the repeat up until the end of 30 November the following year.
The new rule also provides greater protection to those operating archives. Under the old law every time a programme was downloaded on, for example, an internet archive, this amounted to a fresh publication and accordingly was potentially actionable. This meant that the 1 year limitation period was in effect meaningless. Now, publication by accessing material through an archive will only be actionable if the claimant sues within 1 year of the initial publication / transmission of the programme, unless the subsequent publication is material different. Note the courts do retain their discretion to dis-apply the 1 year limitation period where that would result in injustice although that is unlikely to happen often in practice.

Libel Tourism. The Act introduces a new rule designed to limit the perceived problem of ‘libel tourism’, in other words non-domiciled claimants choosing England as the place to sue non-domiciled defendants, because England’s defamation laws are deemed to be more claimant-friendly. So called English libel tourism gained particular notoriety when the American academic Rachel Ehrenfeld, who lived in New York, was sued in London by a Saudi businessman over allegations made in her book Funding Evil. Neither party was domiciled in the UK and only 23 copies of the book were available in the UK. Nevertheless, the English courts accepted jurisdiction and tried the case. When the journalist refused to acknowledge the jurisdiction of English courts, the claimant was granted judgement in default and damages were awarded against her. This led directly to the New York Legislature passing in 2008 the Libel Terrorism Protection Act (sometimes referred to as “Rachel’s Law”), legislation which protects New Yorkers against libel judgments in countries whose laws are inconsistent with the level of freedom of speech granted by the United States’ Constitution. Many other States have followed suit and passed similar legislation. The Act’s new provision applies to any defamation action brought against a person who is not domiciled in the UK, in another Member State or in a State which is party to the Lugano Convention (e.g. Iceland, Norway). The Act states that, “A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement”. Notes accompanying the Act give the example of a statement published 100,000 times in Australia and 5000 times in the UK, saying that in such circumstances it is likely that Australia would be the most appropriate place to sue for defamation, not England.

Actions against Secondary Publishers. The Act limits those who can be sued for defamation providing that a court cannot entertain an action for defamation against a secondary publisher - that is a person who is not the author, editor or commercial publisher, unless it is not reasonably practicable for an action to be brought against a primary publisher. The Act further provides that where a successful action has been brought, normally against a primary publisher, the court can order that the operator of a website on which the statement was posted to remove it, or order a secondary publisher to stop distributing, selling or exhibiting material containing the statement. The terms editor, author and publisher have the same meaning as defined in the Defamation Act 1996. Author means the originator of the statement, but does not include a person who did not intend that his or her statement be published at all; ‘editor’ means a person having editorial or equivalent responsibility for the content of the statement or the decision to publish it; and ‘publisher’ means a commercial publisher, that is a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business.

Jury trials. The Act abolishes the presumption that defamation actions will be tried by a jury. Under the old law, the presumption was that actions would be heard by juries as long as a party to the litigation made an application to the court for trial by jury within 28 days of service of the defence. The court was then obliged to order trial by jury “unless the court [was] of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury”. What the act does not do is set out the circumstances in which a court should exercise its discretion in favour of trial by jury. Under the old law two factors in particular were considered relevant to and favouring trial by jury: 1) prominent figures in public life and questions of great national interest; and 2) issues of credibility and an attack on the honour and integrity of a claimant. The courts may have regard to these factors although the absence of criteria guiding the court’s discretion mean that it is difficult to predict what attitude the courts will take and it may be that trials will only be tried by juries in exceptional circumstances.

Court’s Power to Order a summary of its judgement. Under the old law the court had no power to order a defendant to publish an apology or correction or to publish its judgment. Newspapers who signed up to the PCC’s Editor’s Code of Conduct did however sign up to agreeing to publish a fair and accurate report of the outcome of any defamation action to which it had been a party. There is no corresponding requirement in the Ofcom Broadcasting Code for broadcasters. The Act introduces a provision for the first time which enables a court to order a defendant to publish a summary of its judgment. The Act states, “Where a court gives judgment for the claimant in an action for defamation the court may order the defendant to publish a summary of the judgment. The wording of any summary and the time, manner, form and place of its publication are to be for the parties to agree. If the parties cannot agree on the wording, the wording is to be settled by the court.” Where the parties cannot agree on the time, manner, form and place the court can give directions.