This is second part of Alastair Mullis’ study of the Draft Defamation Bill.  Part 1 was posted on 18 March 2011.  In this post he considers the provisions of Clauses 3 to 9 of the Bill.

Clause 3 – Truth

Clause 3 replaces the existing common law defence of justification with a new statutory defence of truth. Subsection (1) restates the existing law in providing that ‘It is a defence … for the defendant to show that the imputation conveyed by the statement complained of is substantially true.’ In essence, a restatement of the existing law. Subsections (2) and (3) replace section 5 of the Defamation Act 1952, which is repealed, but the new provisions are intended to, and probably will, have the same effect as those in section 5 but are ‘expressed in more modern terminology to improve their clarity’. Thus, where a statement conveys ‘two or more distinct imputations’, if ‘one of more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not materially injure the claimant’s reputation’.

Comment

The main effect of this provision is a change in name: in most other respects it appears that the intention of the drafters is that the new statutory defence should restate the existing law. A real concern however is the following statement in the Commentary: ‘Subsection (4) abolishes the common law defence of justification and repeals section 5 of the 1952 Act. This means that where a defendant wishes to rely on the new statutory defence the court would be required to apply the words used in the statute not the current case law. In cases where uncertainty arises the current case law would constitute a helpful but not binding guide to interpreting how the new statutory defence should be applied.’ With respect, this is an invitation to litigation. Legislative attempts to restate rules of common law are fraught with danger: as Lord Hoffmann has said, they are inclined to ‘lead to expensive litigation over whether or not Parliament intended to change things’. It would not be wholly surprising therefore if the apparently clear words of the new provision were picked over in a series of future cases with arguments being made that recourse to current case law is necessary to interpret how the statutory provision should be applied.

Clause 4 – Honest opinion

Clause 4 replaces the existing fair comment defence with a new statutory defence of honest opinion. The existing common law defence is abolished and section 6 of the Defamation Act 1952 is repealed. Subsections (1) to (4) provide that for the defence to apply three conditions must be met. Condition 1 is that the statement complained of is a statement of opinion. Condition 2 is that the opinion is on a matter of public interest and condition 3 is that an honest person could have held the opinion on the basis of (a) a fact which existed at the time the statement complained of was published; (b) a privileged statement which was published before the statement complained of. Under subsection (5), the defence is defeated if the claimant shows that the defendant did not hold the opinion. Subsection (6) makes provision for situations where the defendant is not the author of the statement and provides that in such a case the defence is only defeated if the claimant shows that the defendant knew or ought to have known that the defendant did not hold the opinion.

Comment

This provision is one of the more radical in the Bill and deserves careful attention. While the new statutory defence, which abolishes the existing common law defence, maintains the broad structure of the existing law, it converts what has always been a defence with both subjective and objective elements into a wholly objective defence (save for the malice issue). Under the existing law, albeit that the precise extent of the knowledge that the defendant has to have is not entirely clear, the defendant is required to establish that he was aware, or at least had been aware, of facts on which his comment was based. In the absence of such subjective knowledge the defendant has no defence. Under clause 4, the defendant does not have to show that he was actually aware of fact(s) that would have justified an honest person holding the opinion, he need only prove that an honest person could have held the opinion on the basis of ‘a fact which existed at the time the statement complained of was published.’ In effect, the Bill provides a defence for a “naked comment/opinion”.

Moreover, there appears to be no need for the defendant to prove, as the Supreme Court had required in Spiller v Joseph [2010] UKSC 53, that the comment explicitly or implicitly indicates, at least in general terms, the facts on which it is based. All that is required is that a fact must have existed at the time the statement was published which would have justified an honest man holding the opinion. In my view this goes too far in favour of freedom of expression. Further, by permitting a defendant to rely on the defence of honest opinion where he can show that an honest person could have held the opinion on the basis of a privileged statement which was published before the statement complained of (subsection (4)(b)) the provision allows a defence to a person who expresses an opinion on another opinion. Even if one accepts that allowing comment on a fact not known to the defendant should fall within the defence, it is surely a step too far to provide a defence to someone who comments in a defamatory manner on a defamatory comment, neither of which need be based on fact.

Clause 5 – Privilege

Clause 5 amends provisions contained in the Defamation Act 1996 relating to the defences of absolute and qualified privilege and extends in a number of respects the circumstances in which the defences can be used. Subsection (1) extends substantially the existing absolute privilege that applies to court reports that are fair and accurate and published contemporaneously with the proceedings. Under the existing law, the privilege was restricted to reports of UK courts, the ECJ and ECtHR and any international criminal tribunal established by the Security Council of the UN. Under subsection (1) the privilege will now apply to (a) any court in the UK, (b) any court established under the law of a country or territory outside the UK and (c) any international court or tribunal established by the Security Council of the UN or by international agreement.

Subsections (2) to (8) of clause 5 make amendments to Part 2 of Schedule 1 of the 1996 Act. Under section 15 of the Act certain statements (which are set out in Schedule 1 of the Act) are protected by qualified privilege either without (Part 1) or subject to (Part 2) explanation and contradiction. In addition to the protection already offered to ‘fair and accurate copies of, or extracts from,’ the different types of publication to which the defence is extended, amendments are made in subsection (3), (5), (7) and (8) to extend the scope of qualified privilege to cover fair and accurate summaries of the material. More significantly, the qualified privilege set out in Part 2 currently only applies to publications arising in UK and EU member states. The defence is extended in subsections (3), (4), (5) and (6) of the Bill to cover different types of publication to which the defence extends anywhere in the world. Subsection (5) extends the existing protection applicable to reports of general meetings of UK companies (para 13) to quoted companies.

Subsection (7) inserts a new paragraph covering reports of proceedings of a scientific or academic conference. Such conferences and proceedings may well have been protected already, and certainly were where the conference was an international one, but subsection (7) will ensure there is no gap.

Comment

The extension by clause 5 of existing defences of statutory privilege is in large part sensible and uncontroversial.

Clause 6 – Single publication rule

Clause 6 abolishes the existing multiple publication rule, which gives rise to separate claims for every new publication of a defamatory imputation whether or not published by the same publisher, and introduces a single publication rule to ‘prevent an action being brought in relation to a publication of the same material by the same publisher after a one year limitation period from the date of first publication of that material to the public or a section of the public.’ Under subsection (1), the section applies if a person (a) publishes a statement to the public (which includes a section of the public – subsection (2)(a)) and (b) subsequently publishes (whether or not to the public) a statement which is substantially the same. In such a case, the cause of action is treated for limitation purposes as accruing from the date of first publication (subsection (4)) and, subject to the court’s discretion under s 32A of the Limitation Act 1980 (which is retained in subsection (6)(a)), the limitation period will therefore expire one year after the date of the first publication and not, as at present, one year after the date of the last publication. The clause does not apply where the manner of the subsequent publication is materially different from the manner of the first publication (subsection (4)) and in determining this question the matters to which the court may have regard include (a) the level of prominence that a statement is given and (b) the extent of the subsequent publication (subsection (5)).

Comment

Under the existing English law, ‘publication’ occurs on each occasion that a statement is accessed as opposed to the occasion on which it is – in lay terms – published. This is the Duke of Brunswick (1849) 14 QB 185) multiple publication rule. In the context of the maintaining of online digital archives by traditional media companies, this rule results in a heightened legal risk that is arguably undesirable given the social benefit delivered by such archives. In the wake of the Loutchansky litigation and the subsequent action brought by Times Newspapers before the Strasbourg court, (respectively, Loutchansky v Times Newspapers Ltd [2001] EWCA Civ 1805, and Times Newspapers Ltd (Nos 1 and 2) v. United Kingdom (nos. 3002/03 and 23676/03) there have been calls for the introduction of a single publication rule for online publication. The Government conducted a consultation on this theme in late 2009.

 

The effect of clause 6 is that, as a general rule, the limitation period in an action for libel or slander runs from the date that the publication was first made available to the public. Thus a claimant is prevented from bringing a claim in respect of a publication that first became available to the public more than one year previously except in certain limited circumstances. Under subsection (1) the section applies if a person (a) publishes a statement to the public (which includes a section of the public – subsection (2)(a)) and (b) subsequently publishes (whether or not to the public) a statement which is substantially the same.  However the provision does not apply where the manner of the subsequent publication is materially different from the manner of the first publication (subsection (4)).

I have serious concerns about the effect of the clause as drafted and also do not accept that the case for abandonment of the multiple publication rule has been made out. Taking first the effect of the clause as drafted. Its effect may be to exempt from liability many defendants who do not deserve to be exempted. Consider, for example, the case of a defamatory online publication made on an obscure website. After some months, a web aggregator picks up the post and includes it within a profile of the claimant. 13 months after the original publication, an Internet search engine picks up the defamatory publication and publishes it as part of a search snippet. In such a scenario, the original author would escape liability as the limitation period would have expired. Google and the web aggregator would also escape liability under the common law. Yet the damage to the claimant’s reputation could in such a scenario be severe and causing such damage may have been the precise intention of the defendant. It might of course be argued that the manner of publication on the web aggregator or as part of the Google snippet was materially different from the manner of first publication and that as a consequence time would begin to run from the later date. Such an argument does however seem rather artificial and though subsection (5) is helpful in identifying certain factors that may be relevant in determining whether the manner of the publication is different, application of the provision is not likely to be easy.

 

More fundamentally, it is my view that a single publication rule (particularly with a one year limitation period) does not allow for an appropriate balance to be struck between Article 10 rights to communicative freedom and competing rights to privacy and reputation. The single publication rule envisaged by the Bill would automatically absolve the author of an impugned archive statement of any responsibility for its making after the requisite limitation period following first publication. This is not appropriate. Not every author of a defamatory statement – or every archivist of online content − is deserving of exoneration from liability. In the online environment, the availability of past statements can continue to be horrendously damaging. At whatever remove it is made from the first uploading of the impugned statement, each reading has the potential to harm the reputation of the person defamed. Consequently, it is my view that the multiple publication rule should be retained and a new defence of ‘non-culpable republication’ introduced. This is a matter on which Andrew Scott and I have commented before (see Mullis and Scott, Lord Lester’s Defamation Bill 2010 – a distorted view of the public interest? (2011) 16(1) Communications Law 6) and we are in the process of completing a paper fleshing out the scope of such a defence.

 

Clause 7 – Action against a person not domiciled in the UK or a Member State

Clause 7 is intended to deal with the ‘problem’ of libel tourism, which is described as a case ‘with a tenuous link to England and Wales brought in this jurisdiction’. To avoid conflict with European jurisdictional rules contained in the Brussels Regulation and Lugano Convention, the section applies only where the defendant is not domiciled in (a) the United Kingdom, (b) in another Member State of the EU or (c) in a state which is a contracting party to the Lugano Convention. The meaning of ‘domicile’ is set out in subsection (3) and subsection (4) provides the full definitions of the Brussels Regulation and the Lugano Convention. Under subsection (2), ‘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.’ What appears to lie behind this provision is an intention to ensure that the court consider the ‘global picture’ in determining which court is most appropriate to hear the claim and to avoid courts taking jurisdiction ‘simply because a claimant frames their claim so as to focus on the damage which has occurred in this jurisdiction only.’ In determining this question it is clear that the drafters wanted the court to have at the forefront of its mind the number of publications made in different jurisdictions. However, they acknowledge that a range of factors are likely to be taken into account including whether there is reason to think that the claimant would not receive a fair trial elsewhere.

Comment

Whether or not libel tourism is a real problem has been the subject of much comment by others and I do not intend to add to the literature here. Suffice to say that there seems to me to be little hard evidence that it is a serious problem and legislating on the basis of anecdote (in respect of threats to litigate by libel tourists) does not strike me as sensible.

So far as the proposed provision is concerned it does not seek to address libel tourism by Europeans (a lesser form of libel tourism?) because to have done so would have brought English law in conflict with the Brussels Regulation, Shevill v Press Alliance [1995] ECR I-415 and the Lugano Convention. What Clause 7 seeks to address is the supposed problem of libel tourism by ‘real’ foreigners. It does this by requiring the court to consider whether 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.’

The underlying premise of the provision is of course that one claim somewhere in the world should be sufficient to vindicate the claimant’s reputation. I find this very troubling. The fact is that where a serious libel is published about, for example, an international business person or sports player, it will impact his or her reputation in whichever places he or she is well known. That there may be more publications of the imputation in one jurisdiction relative to others does not change that reality. To refuse a claimant jurisdiction where his or her reputation has been seriously damaged in this jurisdiction simply because there were relatively fewer publications of the imputation here than elsewhere is wrong. The provision should be abandoned.

Clause 8 – Trial to be without jury unless the court orders otherwise

This clause removes the existing presumption in favour of jury trial in defamation cases. Under the existing law, s 69(1) of the Senior Courts Act 1981 and s 66(3) of the County Courts Act 1984 claims for libel and slander, inter alia), there is a right to trial by jury ‘unless the court considers 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.’ Subsections (1) and (2) of clause 8 amend the 1981 and 1984 Acts to remove libel and slander from the list of proceedings where a right to jury trial exists. ‘The result will be that defamation cases will be tried without a jury unless a court orders otherwise.’

Comment

Notwithstanding the ‘right’ contained in s 69(1) of the Senior Courts Act 1981 and s66(3) of the County Courts Act 1984, libel jury trials seem to have almost entirely disappeared. The date of publication of the Bill coincided with the 600 day anniversary of the last jury trial (I am indebted to Benjamin Pell for this information). Reversing the presumption in favour in jury trial will therefore probably simply recognise the current de facto position.

Clause 9 – Meaning of ‘publish’ and ‘statement’

Clause 9 sets out the meaning of the terms ‘publish’, ‘publication’ and ‘statement’ for the purposes of the Bill. While the definitions are broad, they add virtually nothing to the existing law.

Matters reserved for consultation

Perhaps surprisingly, there are a number of issues that were dealt with in Lord Lester’s Bill but which, at least so far, have not made it into the government Bill. In particular, the question whether corporate entities should be allowed to sue and whether the rule prohibiting public authorities from suing should be given statutory form, what to do about internet publications and whether there ought to be a new procedure for defamation cases are opened up for consultation. Andrew Scott and I have already expressed our opinions on these issues and will be putting these to the Ministry of Justice in due course.

Professor Alastair Mullis is Head of the Law School at the University of East Anglia and a general editor of Carter-Ruck on Libel and Privacy, 6th Edn, 2010.

Author’s note: with many thanks to Benjamin Pell and Andrew Scott for comments. The errors are all mine.