Lord Lester’s draft Defamation Bill contains two provisions directed towards “trivial libels” and “jurisdiction”.   There is general agreement that “trivial libels” should not be allowed to clog up the courts, although less clarity about how they should be identified and dealt with.  There is little agreement as to whether statutory intervention is needed to deal with “jurisdictional” issues.  The relevant provisions of the draft Bill are to be found in clauses 12 and 13.  Both these clauses are intended to deal with cases where there is no real harm to the claimant’s reputation in England Wales.  Unfortunately, both clauses generate more problems than they solve.

Clause 12

Clause 12 of the Bill is headed  “Striking out where claimant suffers no substantial harm”  and provides as follows:

“(1)   The court must strike out an action for defamation unless the claimant shows that—

(a)     the publication of the words or matters complained of has caused substantial harm to the claimant’s reputation; or

(b)     it is likely that such harm will be caused to the claimant’s reputation by the publication.

(2)  Subsection (1) does not apply if, in exceptional circumstances, the court is satisfied that it would be in the interests of justice not to strike out the action.

(3)   In determining whether a claimant’s reputation is or may be substantially harmed, the court must have regard to all the circumstances of the case.

(4)   An order under subsection (1) may be made by the court of its own motion or on an application by any party to the action.

(5) Subsection (1) does not limit any power to strike out proceedings which is exercisable apart from this section”.

The Explanatory Notes to the Bill point out that there is already jurisdiction, deriving from the case of Jameel v Dow Jones ([2005] QB 946) to strike out a case as an abuse of the process if the publication does not amount to a “real and substantial tort”.  Furthermore,  the result of the decision in Thornton v. Telegraph Media Group ([2010] EWHC 1414 (QB)) is that for words to be defamatory at all they must cross a threshold of seriousnes, the allegation must have some tendency or likelihood of adverse consequences for the claimant.  This means that, at common law, there are two hurdles of “seriousness” to be overcome.   It appears that clause 12 is intended raise the threshold of seriousness, in the words of the Explanatory Notes, to “build on” Jameel.

This gives rise to an obvious and immediate problem.  Presumably clause 12 intended to apply a more rigorous test than that applied in Jameel – if not, there would be no point in having it.  But how much more rigorous?  How high is the new bar set by this provision?  Neither the clause itself nor the Explanatory Notes give any guidance.  This is something which would have to be resolved by decisions of the court and would inevitably mean a period of considerable uncertainty whilst a body of case law interpreting the provision was developed.

It seems that this clause would, inevitably, mean that in a large number of libel actions, there would be an “additional stage” – perhaps immediately after that service of the Particulars of Claim at which the issue of “substantiality” would be considered.  This would, in turn, involve consideration of:

(a)     The meaning of the allegations complained of – in other words what exactly was being alleged.

(b)     The extent of publication – how many people had read it.

(c)     The nature of the people to whom the libel was published – were they people who were likely to believe the allegations.

(d)     The claimant’s reputation prior to publication.

(e)     The extent of any actual or potential damage.

(f)      Any aggravation or mitigation of damage.

It seems inevitable that, in some cases, defendants would seek to argue that despite the apparent seriousness of the libel and the wide publication, the claimant’s reputation was such that no substantial damage had resulted.   Clause 12 mandates the court to look at “all the circumstances” and the range of admissible evidence is, therefore, potentially unlimited.

It is suggested that the practical consequence of this provision would be to increase the cost and length of libel proceedings.  It would, in addition, require “front loading” of costs: that is, spending more money at the outset.  Any well advised claimant would, before issue gather evidence to support the claim that the damage was substantial.   This is evidence of a kind which, at present, is only sought at a much later stage of a case.

Clause 13

Clause 13 of the Bill is headed  “Harmful event in cases of publication outside the jurisdiction”  and provides as follows

“(1)   This section applies in an action for defamation where the court is satisfied that the words or matters complained of have also been published outside the jurisdiction (including publication outside the jurisdiction of any words or matters that differ only in ways not affecting their substance).

(2) No harmful event is to be regarded as having occurred in relation to the claimant unless the publication in the jurisdiction can reasonably be regarded as having caused substantial harm to the claimant’s reputation having regard to the extent of publication elsewhere”.

It appears that this clause is directed towards the issue of “libel tourism” – although Lord Lester himself accepted in the recent Second Reading debate that “the problem of libel tourism has been greatly exaggerated”.

According to the Explanatory Notes,

“Clause 13 aims to discourage forum-shopping by making clear that cases should only be heard in this jurisdiction where substantial harm has been caused to the claimant’s reputation within this jurisdiction as compared with elsewhere (para 141)

It is said that

“This means that a claimant would have no cause of action in this jurisdiction where the defamation had been widely published elsewhere and the impact of publication in this jurisdiction was insignificant. The outmoded presumption [of damage] is no longer enough to found the cause of action” (para 144).

The intention is to define “harmful event” for the purposes of the Brussels Convention and so to limit cases in which EU law requires claimants to be able to bring proceedings in England and Wales

The first point to make is that the impact of clause 13 goes much wider than “libel tourism” cases: however wide the  definition of this term which is being employed.  Clause 13 applies in all cases where “the words or matters complained of have also been published outside the jurisdiction” (clause 13(1)).  Bearing in mind that any magazine, newspaper or blog will now be published worldwide via the Internet, this means that clause 13 will be relevant in almost all defamation cases.

Secondly, the meaning of the operative provision in clause 13(2) is entirely unclear.  It requires the court to consider whether

“publication in the jurisdiction can reasonably be regarded as having caused substantial harm to the claimant’s reputation having regard to the extent of publication elsewhere”.

Clause 12 already requires the claimant to demonstrate substantial harm. On the assumption that clause 13 adds something to clause 12, it must mean that there can be cases where, although there is “substantial harm” for clause 12 purposes, there will be no harmful event for clause 13 purposes because of “the extent of publication elsewhere”.

It is noteworthy that the clause refers not to the “damage elsewhere” but to the “extent of publication elsewhere”.  It is difficult to see how it this makes sense: it means that substantial harm has to be assessed by taking into account a consideration which is logically entirely irrelevant.  If a businessman from, say, India who has business interests in England, is accused of serious wrongdoing by an English newspapers how can substantiality of the damage he suffers in England depend on “the extent of publication” in India?

The mystery is compounded by the Explanatory Notes which suggest that clause 13 means that there would be no claim where

“where the defamation had been widely published elsewhere and the impact of publication in this jurisdiction was insignificant”.

But in such a situation clause 12 would mean that the claim would be struck out anyway.  If this is the purpose of clause 13 it is difficult to see why it is needed at all.

Thirdly, the same points can be made about clause 13 as have already been made in relation to clause 12.  It is said this provision “builds on” Jameel (Explanatory Notes, para 142) without any explanation as to how this is done and how much higher the bar is being raised.

Conclusions

Clauses 12 and 13 appear to have the laudable aim of ridding the courts of trivial libel claims.  It is suggested that if the aim is indeed to “build on” Jameel any statutory reform needs to be much clearer about where the “bar” is to be placed and care should be taken to limit the time and costs taken up on this issue.  Perhaps the best way forward is to bring in new rules of court as suggested by the Libel Working Group.

This paper was originally delivered at the MBL/Inforrm Conference on Lord Lester’s Defamation Bill on 15 July 2010.