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Charles Russell LLP is a limited liability partnership registered in England and Wales, registere...
www.charlesrussell.co.uk
Charles Russell LLP is a limited liability partnership registered in England and Wales, registere...
www.charlesrussell.co.uk
Charles Russell LLP is a limited liability partnership registered in England and Wales, registere...
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Defamation act 2013

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The Defamation Act 2013 – a first look
It’s not all change… and it’s not yet in force.

At last, after lengthy legislative to-ing and fro-ing, the new Defamation Act 2013 has been passed and is ready to come into force.

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Defamation act 2013

  1. 1. www.charlesrussell.co.uk Charles Russell LLP is a limited liability partnership registered in England and Wales, registered number OC311850, and is authorised and regulated by the Solicitors Regulation Authority. Any reference to a partner in relation to Charles Russell LLP is to a member of Charles Russell LLP or an employee with equivalent standing and qualifications. A list of members and of non-members who are described as partners, is available for inspection at the registered office, 5 Fleet Place, London EC4M 7RD. The Defamation Act 2013 – a first look It’s not all change… and it’s not yet in force. Briefing note Author: Nick Armstrong Date: May 2013 At last, after lengthy legislative to-ing and fro-ing, the new Defamation Act 2013 has been passed and is ready to come into force. We are promised that "....the Defamation Act will be brought into force later in the year." https://www.gov.uk/government/news/defamation-act-reforms-libel-law In the words of Lord McNally, Justice Minister: “The previous law on libel cases had been criticised as being antiquated, costly and unfair, which resulted in a chilling effect on freedom of expression and the stifling of legitimate debate. The Defamation Act 2013 which has today completed its passage through Parliament will overhaul the libel laws in England and Wales and bring them into the 21st century, creating a more balanced and fair law.” It is already a subject of debate as to how much it will really change. Claimant lawyers seem to be minimizing its likely impact, stressing that it largely codifies existing judge- made law, and deals with some areas (like “libel tourism”) that had become really only theoretical problems. Freedom of expression campaigners have welcomed the Act. The Press Gazette said: “Journalists are set to have greater protection from being sued for libel” Much will of course depend on how the judges implement it once it’s in force. In a nutshell the Act: Introduces a "serious harm" threshold for defamation complaints (section 1) To be the subject of a defamation action, a statement will have to have caused, or be likely to cause, “serious harm” to the reputation of the claimant. The concept of libel actions which are trivial being struck out is an established principle of case law since Jameel (Yousef) v Dow Jones & Co. Inc. [2005] EWCA Civ 75. This section is intended to ‘raise the bar’ (to use the Justice Ministry’s phrase) as to what constitutes a viable libel complaint. There is specific focus on corporate claimants: section 1(2) states that “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”. This does not mean a company will have to prove specific financial loss before being allowed to sue, but it does signal a greater emphasis at the outset of a complaint on whether serious financial loss is a likelihood as a result of the publication complained about by the company. As such, the new Act will tip the balance in favour of freedom of expression about
  2. 2. www.charlesrussell.co.uk Charles Russell LLP is a limited liability partnership registered in England and Wales, registered number OC311850, and is authorised and regulated by the Solicitors Regulation Authority. Any reference to a partner in relation to Charles Russell LLP is to a member of Charles Russell LLP or an employee with equivalent standing and qualifications. A list of members and of non-members who are described as partners, is available for inspection at the registered office, 5 Fleet Place, London EC4M 7RD. corporate activities – i.e. it restricts the ability of corporate entities to use the fear of libel proceedings to silence their critics. Puts the defences of truth, honest opinion and publication on a matter of public interest into statutory form (sections 2, 3 & 4) The corresponding common law defences (previously called: justification, fair/honest comment and the Reynolds defence) are abolished. This appears to the most far- reaching reform of all. However it seems that the sections are intended to replicate / simplify the law as it was, not change it. As with all the other sections, time will tell whether the way the judges interpret the Act in specific cases marks any real shift from the approach to date. It is unlikely that much will change in effect. Sets out a new process dealing with online posts which will provide a defence to website operators if they are not the author of the post and it is possible for the claimant to identify the person who posted the statement (section 5) This is a significant new rule, simplifying the current position. The website operator will have to respond promptly to notices of complaint in order to have the benefit of this defence. Moderation by the website operator of material posted by others on its site will expressly not defeat the defence. Detailed regulations are to be passed to bring this section into effect, in particular about what constitutes a notice of complaint, and what the operator must to do to equip the complainant with identification details of the person who made the relevant posting. The ‘identification’ provisions are designed to minimize the need for complainants to take time-consuming and costly steps to discover the identity of an anonymous poster. Makes additions to the privilege provisions of the Defamation Act 1996; in particular, extending the protection of privilege to peer-reviewed scientific and academic journals (sections 6 & 7) The latter responds to lobbying by the scientific community Establishes a “single publication rule” (section 8) This is a significant provision, changing the approach to online material: it will be deemed published once when originally posted (not each and every time it is accessed by readers), the effect being that the 1 year limitation period will run from the date of that first posting. Limits the English court’s jurisdiction in defamation actions against those not domiciled in the UK or another EU member state (section 9) The court will have to be satisfied that, of all the places in which the statement complained of has been published by a foreign-domiciled defendant, England and Wales is clearly the most appropriate place in which to bring an action in respect of the
  3. 3. www.charlesrussell.co.uk Charles Russell LLP is a limited liability partnership registered in England and Wales, registered number OC311850, and is authorised and regulated by the Solicitors Regulation Authority. Any reference to a partner in relation to Charles Russell LLP is to a member of Charles Russell LLP or an employee with equivalent standing and qualifications. A list of members and of non-members who are described as partners, is available for inspection at the registered office, 5 Fleet Place, London EC4M 7RD. statement The aim is to simplify the rules governing libel actions with little real connection to this country. The approach reflects the one the judges had worked out already, to deal with so-called “libel tourism” - but does not address the situation where a foreign-domiciled claimant seeks to sue for libel in England. Provides that libel trials shall be without a jury unless the court orders otherwise (section 11) This in fact enacts the trend in the judges’ approach over the last few years Gives the court new powers where it has given judgment in a defamation action, to make an order compelling (1) publication of a summary of the judgment; and / or (2) removal of defamatory statements from a website or from distribution (sections 12 & 13) Since only a small minority of defamation complaints result in judgment (most cases being settled) this may not be of enormous practical effect. The changes which the Act will bring in will not necessarily signal a radical change of direction in the way defamation law works in practice. But as well as favouring freedom of expression in a number of ways, codification of significant elements of the law and the simplification of the rules in some areas may lead to an important move away from technicality towards more straightforward resolution of claims and hence the reduction in complexity and cost which has discredited English libel law hitherto. More information Nick Armstrong +44 (0)20 7203 5312 nick.armstrong@charlesrussell.co.uk This information has been prepared by Charles Russell LLP as a general guide only and does not constitute advice on any specific matter. We recommend that you seek professional advice before taking action. No liability can be accepted by us for any action taken or not taken as a result of this information. Charles Russell LLP is not authorised under the Financial Services and Markets Act 2000 but we are able in certain circumstances to offer a limited range of investment services to clients because we are members of the Law Society. We can provide these investment services if they are an incidental part of the professional services we have been engaged to provide.

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