Thursday 23 January 2014
The Defamation Act:
Let's Get Serious
Speaker Profile
Emma Woollcott
Associate
+44 207 440 7415
emma.woollcott@mishcon.com
Emma is a litigator in Mishcon Private. She specialises in defamation, breach of confidence, invasion of privacy, harassment
and injunctions.
She advises individuals, companies and charities on reputation management issues, often in the context of wider disputes
and in times of crisis. She is well
well--versed in new media and Internet
Internet--related issues. She provides claimants and defendants
with pre
pre-- and post
post--publication advice, often on an urgent basis. She advises on complaints to the Press Complaints
Commission and to the Advertising Standards Authority, and deals with issues arising under the Data Protection Act and
the Freedom of Information Act.
Emma takes a pragmatic approach to problem solving, and provides decisive, commercial advice. She has broad
experience of commercial litigation in the High Court and the Court of Appeal, often acting for international clients in
complex disputes. She also has experience working with charities, providing strategic focus to their campaigns and their
dealings with government.
Emma was short listed for the Women Of The Future Awards in the Professions category, and invited to join the
Inspirational Women's Network, supported by Real Business. She has since been included in Management Today's 35
Women Under 35. Emma co
co--ordinates the Firm's sponsorship of Pink Law, which was highly commended in the Best
New Pro Bono Activity category of the LawWorks and Attorney General Students Awards.
23.01.2014
Defamation Act 2013: Let’s Get Serious
A guide for professional advisors
23 January 2014
©MISHCON DE REYA 2014
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MEDIA LAW / REGULATORY REFORM
CONTEXT AND COMMENT
“A major victory against censorship in Britain and beyond has been won, with England's notorious libel laws changed in favour of free speech.”
[Index on Censorship, 24 April 2013]
“I hope the press will tell the Privy Council to stick it in the privy; and if you are bothered by those nasty people from the media, and they won’t go away, …may I recommend that you do as my children and I once did years ago. We imitated Eddie Murphy in Beverly Hills Cop, and we stuffed bananas secretly up the reporter’s tailpipe, and I remember us laughing helplessly at her air of puzzlement as she kaboing‐ed up the road. Far better than regulation.” [Boris Johnson, opinion, The Telegraph, 13 October 2013]
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23.01.2014
OVERVIEW OF SEMINAR
1. Basic principles of the law of defamation 2. Key provisions of the Defamation Act 2013: •
Section 1: The “serious harm” test
•
Section 2: Truth
•
Section 3: The Defence of honest opinion •
Section 4: Publication on a matter of public interest
•
Section 5: Operators of Websites
•
Section 8: The single publication rule •
Section 9: Jurisdiction 3. Questions and Observations WWW.MISHCON.COM
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BASIC PRINCIPLES OF DEFAMATION
Publication of a statement, to a third party, which has the tendency to lower the subject in the minds of right‐thinking members of society.
• Libel/Slander • Ordinary and natural meaning
• Reference to the Claimant • Whole publication
• Actionable per se (ie without proof of damage) • Damage to reputation; injury to feelings; special damages WWW.MISHCON.COM
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23.01.2014
INTERPRETING THE ACT
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SECTION 1: SERIOUS HARM
“a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”
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23.01.2014
CASE LAW
INTRODUCING THE SERIOUS HARM TEST
“…there is a distinction between imputing what is merely a breach of conventional etiquette and what it is illegal, mischievous or sinful“; and “that juries should be free to award damages for injuries to reputation is one of the safeguards of liberty, but the protection is undermined when exhibitions of bad manners or discourtesy are placed on the same level as attacks on character and are treated as actionable wrongs.“
Sim v Stretch [1936] (HL)
When considering whether the publications complained of were a “real and substantial tort”: “It would be an abuse
of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little is now seen to be at stake”. Jameel v Dow Jones [2005] (HL)
“The law does not provide remedies for inconsequential statements, that is, of trivial content or import. It is necessary that there should be some threshold test of seriousness to avoid normal social banter or discourtesy ending up in litigation and to avoid interfering with the right to freedom of expression conferred by article 10 of the European Convention on Human Rights”. Thornton v Telegraph [2010]
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SERIOUS HARM – CORPORATES
SECTION 1(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.”
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23.01.2014
SERIOUS HARM – IN PRACTICE
• “Raising the bar” – “serious” vs “substantial”. • Focus on the effect of publication, not the nature of the statement. What really is at stake – “tendency test” v reality. • Increased work to demonstrate harm caused or likely to be caused. Evidence required.
• Increased applications by defendant to strike out claims
• Increased claims by individuals, not companies. • Increased claims in malicious falsehood (if malice involved). •
“Likely harm” ‐ may be reassessed after initial complaint ©MISHCON DE REYA 2014
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SECTION 2: TRUTH
“It
is a defence to an action for
defamation for the defendant to show
that the imputation conveyed by the
statement complained of is substantially
true”
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23.01.2014
SECTION 3: HONEST OPINION
Three conditions:
1. Statement of OPINION (i.e. not fact)
2. Indicates the BASIS of the opinion (in general or specific
terms)
3. An honest person could have held that opinion, based on
facts existing at the time.
The defence is defeated if C can demonstrate that the publisher
did not hold the opinion.
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SECTION 4: PUBLICATION ON A MATTER
OF PUBLIC INTEREST
“It is a defence to an action for defamation
for the defendant to show that
(a)The statement was, or formed part of, a
statement on a matter of public interest;
and
(b)The defendant reasonably believed that
publishing the statement was in the
public interest.”
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23.01.2014
DEFENCES – PUBLICATION ON A MATTER
OF PUBLIC INTEREST
Court must have regard to “all the circumstances of the case”
“In deciding whether Reynolds privilege attaches …the judge, on true analysis, is deciding but a single question: could whoever published the defamation, given whatever they knew (and did not know) and whatever they had done (and had not done) to guard so far as possible against the publication of untrue defamatory material, properly have considered the publication in question to be in the public interest? In deciding this single question, of course, a host of different considerations are in play. One starts with the (expressly non‐exhaustive) list of ten factors identified by Lord Nicholls in Reynolds itself. As the present case well illustrates, however, depending on the particular publication in question, there are likely to be other relevant considerations too.” (Lord Brown in Flood v Times Newspapers 2012)
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THE REYNOLDS FACTORS
1. The seriousness of the allegations.
2. The nature of the information and the extent to which it was a matter of
public concern.
3. The source of the information. Direct knowledge? Axe to grid?
4. The steps taken to verify the information.
5. The status or credibility of the information. An earlier investigation which
commands respect?
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the claimant. He alone may have
pertinent information.
8. Whether the article contained the gist of the claimant's side of the story.
9. The tone of the article.
10. The circumstances of publication.
Not limited to 10 stage test - “all the circumstances of the case”.
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23.01.2014
DEFENCES – PUBLICATION ON A MATTER
OF PUBLIC INTEREST
s4(3): Preservation of “reportage”. Limited
protection, for newspapers’ neutral reporting of
attributed allegations, rather than their
adoption.
s4(4): Allowance given for “editorial judgment”
in determining whether it was reasonable for D
to believe publication was in the public interest.
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OPERATORS OF WEBSITES
New defence – where Operator shows that it was not the
operator who posted the defamatory statement
Aims to focus attacks on the underlying author, referred to as
the “Poster”
Operator’s defence fails if:
• Complainant cannot identify the Poster;
• Complainant gives Operator ‘Notice of Complaint’; and
• Operator fails to respond, in accordance with the
Regulations.
Defence is defeated if Complainant shows Operator has acted
with malice
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23.01.2014
EXTENSIONS TO PRIVILEGE
• Peer-Reviewed statement in a scientific / academic journal
(section 6)
• Extensions to Absolute and Qualified Privilege (section 7)
• Reports of proceedings and/or official documents
outside the United Kingdom
• Fair and accurate reports of proceedings including
(a) at press conferences (b) scientific conference and
(c) Proceedings at a general meeting of a listed
company
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SINGLE PUBLICATION RULE
One year limitation – Internet anomaly
Section 8: For limitation purposes, the cause of action for a
“subsequent publication” which is “substantially the same” as a
“first publication” is treated having accrued on the date of first
publication.
What is “materially different”?
Factors include (a) level of prominence
(b) the extent of publication
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23.01.2014
JURISDICTION
Section 9:
Court does not have jurisdiction if,
1. the Defendant is domiciled outside of the UK, EU or a
Lugano Convention State; and
2. The Court is not satisfied that, of all the places in which the
statement has been published, England and Wales is clearly
the most appropriate forum.
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PRACTICAL STEPS
• Pick battles wisely
• Serious harm threshold
• Evidence of damage
• Anonymous posters – may well engage
• Be pro-active – define your brand, and defend it robustly
• Tidy as you go; avoid arguments of tarnished reputation
• Assess circumstances over time
• Changes to prominence and extent of publication
• Jurisdiction – consider reputation within the jurisdiction
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