News: Defamation Bill as amended by the House of Lords – where are we now?

15 02 2013

House of LordsThe Defamation Bill had its “Report stage” in the House of Lords on 5 February 2012.  It is scheduled to be back before the House of Lords on 25 February 2012 for “Third Reading”.  It should then go back to the House of Commons.

A number of amendments were made to the Bill at the Report Stage.

First, as widely reported, a new clause 2 and Schedules 1 and 2 were added as as result of an amendment table jointly by Lords Puttnam and Mackay and Baronesses Boothroyd and Scotland.

Clause 2 is headed “Arbitration service for defamation and related civil claims against against members of Independent Regulatory Board”.  It  provides curious partial implementation of the recommendations of the Leveson Report – with the Lord Chief Justice setting up a “Defamation Recognition Commission” which, in turn, certify “Independent Regulatory Boards”.  Such boards are required to provided a “recognised arbitration service”.  The court is then required to take into account, when deciding costs and damages, whether either party has chosen not to use the arbitration service.

Libel reform campaigners have complained that the bill is “now in thrall” to a “politically motivated Leveson clause” – but the amendment had strong cross party and cross bench support (see our post here) and is a clear expression of frustration at the Government’s failure to take action on the Leveson recommendations.  Although there has been no public announcement, there seem to have been private “threats” by Conservative opponents of Leveson that, if this clause remains in place then the whole Defamation Bill will be withdrawn.   Supporters of the amendment have indicated an intention to make it more “Leveson compliant” at Third Reading.

Secondly, and with much less public attention, many of the same Peers who voted for the new clause 2 also voted (again, against the Government) for a new clause 3.  This is headed “Non-natural persons” and provides that

(1)  This section apples to an action for defamation brought by—

(a)  a body corporate;

(b) other non-natural legal persons trading for profit; or

(c) trade associations representing organisations trading for profit. 

(2)  The permission of the court must be obtained in order to bring an action to which this section applies.

(3) The court must strike out an application under subsection (2) unless the body corporate can show that the publication of the words or matters complained of  has caused, or is likely to cause, substantial financial loss to the claimant.

(4) Non-natural persons performing a public function do not have an action in  defamation in relation to a statement concerning that function.

The drafting is curious but the intention appears to be to prevent companies and other “bodies corporate” from suing in libel unless they can show the the publication caused (or was likely to cause) “substantial financial loss”.  Clause 3(4) is curious as it might extend the ability of public bodies to sue in defamation in certain circumstances.

Third, in the “public interest” defence provision – now clause 6 “Publication on a matter of public interest”, a new clause 6(2) has been inserted so that clauses 6(1) and (2) now read

(1) 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.

(2) Subject to subsections (3) and (4) in determining whether the defendant has shown the matters mentioned in subsection (1) the court must have regard to all the circumstances of the case.

The precise effect of this provision remains obscure.  It appears that its supporters believe that it, in substance, reproduces the common law defence known as the “Reynolds defence” – with subtle refinements which are difficult to discern.   Obscurely, the “Reynolds defence” is abolished by clause 6(6) – a provision which is, presumably, intended to cover Jameel and Flood as well.

Fourth, minor amendments have been made to the former clause 5 “Operators of websites” (now clause 7).

Fifth, a new sub-clause has been added to clause 15 which has been renamed “Order to remove statement of cease distribution etc” (it was previously clause 13, entitled “Order for the removal of defamatory statement from website”).  Clause 15(1) now reads

(1)  Where a court gives judgment for the claimant in an action for defamation the court may order— 

(a) the operator of a website on which the defamatory statement is posted to remove the statement, or

(b) any person who was not the author, editor or publisher of the defamatory statement to stop distributing, selling or exhibiting  material containing the statement.

The new clause means that a claimant who obtains a judgment in defamation can obtain orders against websites or others involved in distribution etc of defamatory material even though he would not (as a result of clauses 7 and 12) have any cause of action against them.

The fate of the Defamation Bill may now depend on whether the Conservative members of the Government are prepared to honour their promise to implement the recommendations of the Leveson Report – in a way which satisfies Labour and the Liberal Democrats.  If the Government does not bring forward acceptable proposals then the amendments in clause 2 and the Schedules are likely to remain in the Bill.  If that happens the Conservatives could then renege on their manifesto commitment and abandon a Queen’s Speech Bill – in order to avoid implementing the recommendations of an inquiry which they themselves set up.

The next few weeks are likely to be interesting ones for those who follow press and libel reform.

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5 responses

15 02 2013
Elaine Decoulos

As one who has had her libel claim against a billionaire stayed, then struck out because of costs (yes, it’s unbelievable), I believe there needs to be a provision in Clause 2 that no libel claim should ever be stayed or struck out for costs under CPR 3.

And malice needs to be given more consideration in English Defamation law. What if someone with big pockets, say the press or a billionaire, chooses to maliciously defame another? In this situation, London is not the claimant friendly libel capital of the world it’s perceived to be. Rather, it’s a capital of long suffering claimants clammering for justice in a country with the worst (and most malicious) press in the world. It needs changing!

16 02 2013
Loverat

I have long maintained that libel cases are now being viewed much more sensibly by judges in recent years. No doubt that will be backed up by the list of libel cases regularly published here which shows most defendants win their cases.

The law of course still needs to be changed as in theory it is too claimant friendly. But as I say, in practice, things are far better. What now should happen is that the significant minority of libel cases brought which are vexatious and completely absurd need to be disposed of quickly and civil restraint orders slapped on serial litigants (often they are fee exempt and do not pay costs orders so have little to lose) We are about to see further legal action by Mr Christopher McGrath against The Independent which is just a continuation of his absurd claims. Furthermore claims which are so obviously ill conceived in terms of merit and damages claimed (McAlpine V Bercow springs to mind) sponsored by solicitors ought to be struck out and the solicitors banned from bringing libel claims without the permission of a judge.

The courts are being abused and it is about time this nonsense was stopped, I have to respectfully disagree with the last post. Libel claimants on the whole (represented or unrepresented) are a pain in the neck and should be restrained.

18 02 2013
Law and Media Round Up – 18 February 2013 « Inforrm's Blog

[...] News: Defamation Bill as amended by the House of Lords – where are we now? [...]

18 02 2013
Elaine Decoulos

So, who are you Loverat? Surely, a newspaper lawyer. I think you are wrong about who usually wins libel claims. Over to you Benji for the statistics.

19 02 2013
Loverat

A newspaper lawyer?

If I was a newspaper lawyer I would be too embarrassed to show my face on here. The average lawyer team for a newspaper generally do not have a clue about libel as they are regularly dishing out money to pay off libel claimants who do not have a case.

I have been involved in a few cases however and know that a significant minority are complete nonsense. Still, I probably should not have said that most claimants are a pain in the neck – although most of the ones I have come across have been. As for the statistics for various periods, they will be on the archive of this site and include the libel cases that got to court and a hearing. I think the article I recall on here was for 2010 where it was stated 80% or so of defendants won their cases They do not include settlements or withdrawals and statements in open court. Below is one summary which might assist you.

You cannot count out of court settlements in favour of claimants as that bears no relation to the merits of a case. Read the whole article but this is an extract for the relevant years and I think supports my argument that libel cases which go the whole hog usually lose.

http://inforrm.wordpress.com/2012/01/11/defamation-trials-summary-determinations-and-assessments-in-2011/

“The state of libel litigation in England and Wales in 2011 can be summarised like this: no jury trials, not much media involvement and similar numbers of cases to 2010. There were 23 first instance defamation hearings before High Court Judges which resulted in the final disposal of libel actions (in 2010 there were 21). The defendants were successful in 13 of these cases, that is 57% of the total (in 2010 the defendants were successful in 17 or 81% of cases)”.

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