Damage control: Defamation Act in force

The Defamation Act 2013 applies to individuals
or businesses that believe they have suffered
or are likely to suffer ‘serious harm’ or ‘serious financial loss’ as a result of a statement someone has made.

This could be in a published article, email to a network of contacts or even a simple social media post. A claim must then be made within 12 months of the original defamatory statement to avoid being time barred, subject to certain exceptions.

The defences to defamation have largely been codified with minor amendments, and an individual will generally no longer be able to hide behind a social media provider when posting a defamatory statement.

As a consequence of the new Act, it may be harder for some claims for defamation to succeed.

Reputational harm

To proceed with a defamation action, you will have to prove that a statement caused, or is likely to cause, ‘serious harm’ to your reputation. This is intended to deter trivial cases.

There is also a specific focus
on corporate claimants, namely that the statement needs to have ‘caused... or is likely to cause serious financial loss’.
This will probably require evidence such as related loss
of sales, goodwill or a general decline of the business.

This is a significant new provision, changing the approach to comments posted online, which can have an indeterminate shelf life. A
one-year limitation period will then run from the date the statement is published, whether that is online or in paper form.

However, a later limitation period may apply to subsequent publications if the manner of that publication is ‘materially different’ from the manner of the first publication or if the statement is republished by another person. The court also retains a discretion to extend the limitation period when appropriate.

Prior to implementation of
the Act, defences to defamation actions were found in common law – ‘justification’, ‘fair comment’ and ‘Reynolds’ qualified privilege’. These have largely been codified by the Act to ‘truth’, ‘honest opinion’ and ‘publication on a matter of public interest’ respectively.

The defence of justification has now been retitled as the statutory defence of ‘truth’.
The main difference between honest opinion and fair comment is that it is no longer necessary to show that the opinion concerns a matter
of public interest.

The defence of publication on a matter of public interest now requires the court to take into account all the circumstances of the case, allowing for editorial judgement, as opposed to the
set criteria under Reynolds.

Social networking

One of the most significant changes brought about by the Act concerns websites and
social networking. Subject to certain prescribed procedures,
it will generally be a defence
for website operators such as Twitter and Facebook to show that they did not post the statement on the website, provided the author can
be identified.

The Act also provides
that defamation cases will
no longer be heard by juries
and that foreign parties will
only be permitted to pursue
a defamation action in
England and Wales if it is
the most appropriate place
to bring an action. This may reduce libel tourism.

In addition, the courts are
now able to grant two new orders: i) to publish a summary of the judgment; and ii) to
order the removal of the defamatory statement.

The changes summarised
may not necessarily signal a fundamental change of direction. However, they do appear to favour, on balance,
a stricter approach to defamation claims and the simplification of the law
should lead to speedier resolution of them. Ultimately, the consequences of the Act will have to be seen through its application in future decisions.

Defamation cases can be intricate and fact sensitive, where cases may turn on the particular factual circumstances. Parties should therefore seek specialist legal advice on
their positions at the earliest available opportunity. SJ

Stuart Evans, pictured, is a partner and Simon Garner is a trainee at Rawlinson Butler