Media update

The legal landscape for media lawyers has seen a number of significant changes over the last two to three years.

Legislative, cultural and ethical changes have led to practitioners dealing with a number of novel issues while at the same time having to get to grips with new technologies and challenges.

Long before Lord Justice Leveson was to become a household name and make his contribution to media law, a concerted libel reform campaign was underfoot. At the time concern was raised as to the number of defamation claims that were being issued in England and Wales and the “chilling effect” this was having on free speech.

After a lengthy period of debate among lawyers, academics and politicians, and after receiving royal assent on 25 April 2013, the Defamation Act 2013 finally came into force on 1 January 2014. This was despite judicial statistics showing that the number of libel claims had fallen by nearly 40 per cent from a high of 298 issued claims in 2009 to only 186
in 2012.

So, what are the main changes in the new Act and does it address the concerns of those intent on reform or is it simply a codification of existing jurisprudence?

Serious harm

One of the more talked about provisions in the new Act is section 1, which covers serious harm. It says:

1. A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

2. For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.

On the face of it, this would appear to be an increased threshold which a prospective
claimant would need to overcome in to bring proceedings; certainly this is true in respect of companies who wish to sue for defamation as
they are now required to show “serious financial loss” (although what this actually entails is yet
to be seen).

However, in respect of individuals, it is questionable whether this new test goes any further than the established case law pre-dating the new Act which stated that a claim should be thrown out if the claimant had not suffered a “real and substantial tort in this jurisdiction” (see Jameel v Dow Jones [2005] EWCA Civ 75).

Defamation defences

The new Act also seeks to clearly set out the defences available in a defamation claim.
However, again, these appear to be little more
than the codification of existing and established legal principles.

What was previously a defence of justification is now known as a defence of ‘truth’ (in case anyone required clarification on the point) and the ‘fair comment’ defence has been replaced with that of ‘honest opinion’. This is coupled with a new defence providing protection to peer-reviewed statements in scientific or academic journals.

Again, this is in line with recent case law arising from a number of high-profile libel claims, which, while consistent with the law as it then stood, established that ‘honest opinion’ was a better
label to place on ‘fair comment’. See, for instance, the cases of cardiologist Dr Peter Wilmhurst
and author Simon Singh. Importantly, under
this new defence there is no longer any requirement that the issues in question be a matter of public interest.

It would appear that the established Reynolds defence available to newspapers has gone and has been replaced with a defence that publication was on a matter of public interest. In deciding if this is the case, the court “must make such allowance for editorial judgement as it considers appropriate”.

Again, while on the face of it this would appear to allow greater freedom for the press, many believe the court will simply revert to the checklist of factors as previously set out in Reynolds.

Third-party content

Another significant introduction is the defence available to operators of websites where a claim is brought against them in respect of defamatory content posted on their website by a third party.

Under the new act, it is a defence for the operator of the website to show that it was not the author of the content complained of. However, this defence can be defeated if the proposed claimant can show that the person responsible is not identifiable and the website operator does not comply with the (complicated) notification procedures set out in section 5.

The introduction of a single publication rule
is a significant departure from the old Act as it now means that defamatory articles posted on the internet will no longer remain actionable (against the original publisher) as long as they remain on the internet in the same form. As a result, the limitation period will run for a period of one year from the date of first publication.

This rule, together with the defence available under section 5, goes some way to deal with the criticisms that the old Act was incapable of dealing with the internet and the myriad issues that arise from identifying those responsible for posting defamatory content and enforcing the laws against them.

Libel tourism

Another bugbear of libel reform campaigners was that of libel tourism; where foreign claimants were able to bring proceedings for defamation in England and Wales.

Again, the new Act seeks to deal with this but does not go any further than that previously established under the old act. If a claimant does not have a reputation in or link to this jurisdiction, then a potential claimant is no less likely to be able to bring proceedings than they were previously.

In the civil courts, defamation claims remain
the only place in which juries still play a role. The new Act abolishes the previous presumption that defamation trials be heard before a jury although it is still possible to apply for such a trial if done so at, or before, the first case management conference. Again this is consistent with recent practice and a move away from jury trials in all but a handful of cases, indeed I can only think of one case heard before a jury in the last five years.

Finally, the new Act provides the ability for the court to order that the defendant publishes a summary of its judgment whose time, manner, form and prominence is to be agreed by the parties. Given agreement on such issues, it is
likely to be rare the court has power to provide directions in this regard. However, it is not clear
to what extent it can order such publication.

One could ask who really benefits from the changes? Arguably, it is foreign publishers facing claims brought by non-UK domiciles. Additionally, greater protection is provided to website operators provided they comply with the, not entirely straightforward, procedures provided for by section 5 of the new act.

However, these were never the real battlegrounds between free speech and the ability to protect one’s reputation. There also remains a gaping hole in relation to the often disproportionally high costs associated with libel claims.

Overall, I would characterise the new Act as a missed opportunity. By focusing on a small number of areas, the government has missed the bigger picture.

The new Act only relates to publications made after 1 January 2014. Given the length of time it can take for a defamation claim to come to trial, it is likely to be some time still until a substantive body of case law has been established which deals with all of the uncertainties thrown up.

In the meantime, media lawyers are facing the abolition of CFAs and the possible implementation of the Royal Charter and its proposed arbitral system. It is likely that these will have a much greater impact on our day-to-day work than
the much heralded Defamation Act 2013. SJ

Tim Lowles is a senior associate at Collyer Bristow

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