Section 1 of the Defamation Act
“RAISING THE BAR”
TIMOTHY ATKINSON
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Section 1 – “Serious Harm”
Serious Harm:
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
Slide: 2
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The Role of the Explanatory Notes
• The Explanatory Notes are relevant to the interpretation of the Act, but there are
limits to their use
–
They are not part of the Act
–
They have not been endorsed by Parliament
–
They are admissible aids to construction (even where there is no ambiguity)
insofar as they cast light on the objective setting or contextual scene of the
statute and the mischief at which it is aimed. It is not permissible however to
treat the wishes of the Government about the scope of statutory language
as reflecting the will of parliament – Westminster City Council v National
Asylum Support Service [2002] UKHL 38
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What the Explanatory Notes Say
Section 1: Serious harm
10. Subsection (1) of this section provides that a statement is not defamatory unless its publication has
caused or is likely to cause serious harm to the reputation of the claimant. The provision extends to
situations where publication is likely to cause serious harm in order to cover situations where the harm
has not yet occurred at the time the action for defamation is commenced. Subsection (2) indicates that
for the purposes of the 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
11. The section builds on the consideration given by the courts in a series of cases to the question of what is
sufficient to establish that a statement is defamatory. A recent example is Thornton v Telegraph Media
Group Ltd [2010] EWHC 1414 in which a decision of the House of Lords in Sim v Stretch [1936] 2 All ER
1237 was identified as authority for the existence of a “threshold of seriousness” in what is defamatory.
There is also currently potential for trivial cases to be struck out on the basis that they are an abuse of
process because so little is at stake. In Jameel v Dow Jones & Co [2005] EWCA Civ 75 it was
established that there needs to be a real and substantial tort. The section raises the bar for bringing a
claim so that only cases involving serious harm to the claimant‟s reputation can be brought
12. Subsection (2) reflects the fact that bodies trading for profit are already prevented from claiming
damages for certain types of harm such as injury to feelings, and are in practice likely to have to show
actual or likely financial loss. The requirement that this be serious is consistent with the new serious
harm test in subsection (1)
Slide: 4
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Key Points From Explanatory Notes
• Explanatory Notes for this section at least appear to be helpful
• Section 1 “builds upon” the cases which have considered what is sufficient to
establish whether a statement is defamatory - e.g. Thornton v Telegraph
Media Group Ltd [2010] EWHC 1414 (QB). Also an express reference to
Jameel type cases where there is little at stake
• Significantly, the notes expressly state that the section “raises the bar” for
bringing a claim so that only cases involving serious reputational harm can
be brought
• “likely to cause serious harm” is said to be intended to cover a situation
where the harm has not yet occurred at the time when the action is
commenced
Slide: 5
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Comprehensive Definition or Extra Requirement?
• Appears not a new all encompassing definition of defamatory but an extra requirement
a) The common law threshold of defamatory identified in Thornton – an imputation
tending to cause substantial (i.e. non-trivial) harm to reputation of the claimant:
“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.” Cammish v Hughes [2012] EWCA Civ 1655 per Arden LJ at [38]
b) An additional (?) requirement that the publication has caused or is likely to cause
serious harm to the claimant‟s reputation
Slide: 6
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“Likely to Cause Serious Harm” in s.1(1)
•
An important question will be whether this is equivalent to “the statement has a tendency to cause serious harm”
•
It is likely to be argued by a defendant that (a) the Government has rejected a „tendency test‟ (b) the intention of
Parliament is that the court should look at the reality of the situation in all the circumstances (c) the section, properly
construed, is concerned with the effect of the publication not merely the nature of the statement and (d) as a matter of
construction a „tendency‟ test would sit uneasily with the reference in section 1(1) to actual serious harm having been
caused and (e) the Explanatory Notes support this
•
On the other hand, a claimant may point to the fact that (a) the preferred definition in Thornton itself includes both actual
reputational harm and a tendency to cause it, (b) the section „builds upon‟ Thornton, (c) the „tendency test‟ strikes a fair
balance between the claimant and defendant as Parliament must have intended.
•
Said by the Explanatory Notes to cover situations where serious harm has not yet occurred at the time when the action
is commenced
•
Does it cover repetitions likely to be caused by the publication which are likely to cause serious harm in the future, either
because of the likely scale of repetition or the likely nature of the publishees? Or where the claimant‟s circumstances
are about to change so that the publication is likely to cause serious harm? Does this have to be foreseeable at the time
of publication?
•
Does “likely” mean “more likely than not” as opposed to some other level of likelihood?
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What Might the Court Consider in Regard to s.1?
• Criticalbutrealistic analysis of whether, in all the circumstances of the case, serious
harm to reputation (not feelings) has actually been caused or is likely to be caused so
as to decide whether the statement is defamatory at all. In some cases may a claimant
be able to prove this by relying on inference without evidence of harm e.g. very grave
allegation in a national newspaper?
• This would seem to entail an important change in the law, since it will involve
consideration of whether the statement is defamatory at all by reference to matters
which up to now have only been relevant to damages or a Jameel argument e.g. lack
of belief in the statement by publishees may mean that the statement is not
defamatory at all. It seems to follow that the same statement may be defamatory when
published to one person but not to another
Slide: 8
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What Might the Court Consider in Regard to s.1? (contd.)
•
What might the court consider as part of all the circumstances? Among other things:
a) The degree of seriousness of the imputation(s) conveyed by the statement including considering the nature of
the statement, its tone (jokey or mere abuse), fact or comment, relationship to the claimant‟s position, setting in
which it was published etc.
b) Does the statement only identify the claimant to those with special knowledge?
c)
Is the meaning only an innuendo one?
d) The nature of the publishees and their relationship to the claimant
e) The number of publishees
f)
The reaction or likely reaction of publishees (including actual or likely financial loss)
g) A claimant‟s background or pre-existing reputation (including convictions). But what if pre-existing reputation
caused by similar previous statements?
h) „Burstein‟- type particulars (insofar as they go to effect on reputation)
•
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i)
Is the statement partially true?
j)
Has there been a rapid correction?
Serious is a higher bar than substantial – seems to be intended to be a „bit‟ higher. However the distinction is not yet
certain – certainly less clear than the distinction between substantial and trivial
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A Residual Role for Jameel Applications? Non-exhaustive list
• Is there a residual role for a Jameel application? Possibly in a Cammish-type situation
i.e. serious harm has been caused, so that the statement is defamatory under section
1, but because of vindication in the course of proceedings etc, it is not “worth the
candle” for the action to continue
• Section 1 does not deal with costs and use of court time i.e. disproportionality.
However, if the claimant has otherwise satisfied the high requirement of serious harm,
and there is some real point to the action continuing, should the courts treat any
Jameel argument based simply on the relative modesty of likely damages compared
with legal costs/court time with even more scepticism?
• Matters going simply to injury to the claimant‟s feelings which are relevant to e.g. the
level of likely damages
Slide: 10
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Section 1(2): Bodies Trading for Profit
•
Section 1 (2) relates to what is required for reputational harm to be „serious harm‟ in the case of a „body that trades
for profit‟
•
Not intended by the Government to catch charities which happen to engage in activities that involve making a profit
•
Does „likely‟ here mean „more likely than not‟? What does „likely to cause‟ mean in the context of this section?
Tendency of the words? Or actually likely to occur in all the circumstances?
•
In some cases, even if it means actually likely to occur, the nature of the statement combined with the circumstances
of publication may be enough to raise inference of likely serious financial loss
•
In other cases may need detailed Tesla-style particulars
•
Defendants are likely to rely on absence of any proven financial loss or serious financial loss over time, and/or any
correction and/or court vindication, in order to contend that there is no likelihood of serious financial loss
•
Could produce injustice where a body cannot prove serious financial loss has occurred and a correction or court
vindication means it is not likely – with the result that the statement is not to be treated as defamatory at all. Possible
ways round this? (a) „likely‟ means „tendency of statement‟ (b) construe so as to disregard correction or vindication.
But is that what Parliament intended? Did it, rather, have in mind the reality of the situation?
Slide: 11
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Section 1(2): Bodies Trading for Profit (contd.)
• Ironically, it may be the „big‟ bodies rather than the „small fry‟ who are able to afford the time
and cost of assembling the required evidence and/or to spend serious money on mitigation
which may then possibly be relied on as „financial loss‟. This does not appear to be a result
intended by Parliament
• Depending on the facts, an individual(s) connected to the body may be able to sue, if they are
referred to. Alternatively, if malice can be proved, depending on what „likely to cause‟ means in
s.1(2), there may be an advantage in suing in malicious falsehood
• Since defamation claims by these bodies will involve a requirement of actual or likely serious
financial loss and so be more similar to a malicious falsehood claim, does this have any
implications for the single meaning rule? Even if arguable, is this practically likely, given the
Court of Appeal has said that the rule is for Parliament to deal with and the Act does not
address this?
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Financial Loss
What constitutes „financial loss‟ for the purposes of section 1?
• Loss of custom or sales, or a general decline in business appear to suffice, although they may be
difficult to establish on the facts
• Do expenses incurred in mitigation or other expenditure incurred in dealing with the consequences
of the publication constitute „financial loss‟? If so, it would make claims much easier to bring. Is this
consistent with Parliament‟s apparent intention of „raising the bar‟?
• Other forms of possible financial loss: e.g. injury to goodwill. What does „goodwill‟ mean in this
context? Not merely a trading reputation (i.e. the body‟s „good name‟) as this would appear to defeat
the point of section 1(2)? But what about goodwill as an intangible but quantifiable asset identified in
the accounts? How does injury to this asset translate into concrete financial loss? Is it loss by the
body rather than the shareholders? Similarly, what about a drop in share price? The Minister
suggested this could be enough. But is that the body‟s loss? In any event, will the court be able
satisfactorily to assess whether the fall in value of goodwill is „serious‟, assuming this cannot be
inferred on the facts?
• Is the seriousness of the loss to be judged relative to the claimant‟s means or in absolute terms?
Slide: 13
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Some Practical Consequences of the New Section
• CPR 53 seems now outdated in light of changes under the Act
• Possible new procedure to enable early resolution of actual meaning, fact or comment
and whether defamatory in light of section 1
• Not clear what test will be applied at this early stage: query whether it will be equivalent
to CPR 24 or a determination as a preliminary issue or some other test. Will the court
necessarily have enough evidence on eg. financial loss at an early stage?
• Parties may need to engage in significant evidence gathering and preparation of
evidence to determine likelihood and degree of harm – frontloading of costs and the
potential for
a „mini-trial‟
• Certainly there is plenty of room for argument over key aspects of this section
Slide: 14
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Section 2 and 4 of the Defamation Act
“THE NEW DEFENCES OF „TRUTH‟ (S.2) AND „PUBLICATION ON
MATTER OF PUBLIC INTEREST‟ (S.4)”
ANDREW CALDECOTT QC
CLARE KISSIN
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S.2: Truth
16
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The Current Approach: The Common Law Rules of Justification
a) A single charge must be proved to be substantially true
b) Multiple charges: the common sting rule: what you can justify outside of the
complaint - Polly Peck Holdings v Trelford [1986] QB 1000
c) Multiple charges: the severable meaning rule: what you cannot justify
outside of the complaint - Cruise v Express Newspapers Plc [1999] QB 931
d) The repetition rule: Shah v Chartered Bank [1999] QB 241
e) The conduct rule: King v Telegraph Group [2004] EMLR 429
f) The proportionality check: McPhilemy v Times Newspapers Ltd [1999] 3 All
ER 775; Polly Peck Holdings
Slide: 17
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The Current Approach: Justification in Statute
s.5 Defamation Act 1952:
“In an action for libel or slander in respect of words containing two or more
distinct charges against the plaintiff, a defence of justification shall not fail by
reason only that the truth of every charge is not proved if the words not proved
to be true do not materially injure the plaintiff‟s reputation having regard to the
truth of the
remaining charges.”
Slide: 18
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The New Regime: „Truth‟
Found in the Defamation Act 2013
Missing?
(a) A single charge must be proved to be
substantially true
(b) Multiple charges: The common
sting rule
(d) The repetition rule
(c) Multiple charges: The severable
meaning rule
A version of s.5 DA 1952
(e) The conduct rule
(f) The proportionality check
Slide: 19
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The New Regime: The Abolition of All That Came Before
Explanatory Note 18:
“Subsection (4) abolishes the common law defence of justification and repeals
section 5 of the 1952 Act. This means that where a defendant wishes to rely on
the new statutory defence the court would be required to apply the words used
in the statute, not the current case law. In cases where uncertainty arises the
current case law would constitute a helpful but not binding guide to interpreting
how the new statutory defence should be applied.” (emphasis added)
Slide: 20
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The New Regime: What Else Survives?
•
Procedural vs substantive rules?
•
Proportionality rules?
•
The rule in Bonnard v Perryman?
•
Current pleading practice? Note the new wording of “the imputation conveyed
by the statement” rather than the allegation complained of
•
The blue pencil issue from Polly Peck: “I do not think that a plaintiff is permitted
to use a blue pencil upon words published of him so as to change their meaning
and then prevent the defendant from justifying the words in their unexpurgated
form”
•
Approach to a single statement with severable charges?
Slide: 21
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s.4: Publication on a Matter of Public Interest
22
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The Current Approach: Reynolds, Jameel & Flood
•
A widening of the „traditional‟ common law qualified privilege
•
“...Reynolds privilege protects publication of defamatory matter to the world at large where
(i) it was in the public interest that the information should be published and (ii) the publisher
had acted responsibly in publishing the information, a test usually referred to as
„responsible journalism‟ although Reynolds privilege is not limited to publications made by
the media” (Lord Phillips, Flood v TNL [2012] UKSC 11)
•
“In deciding whether Reynolds privilege attaches (whether the Reynolds public interest
defence lies) 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?” (Lord Brown in Flood, emphasis added)
Slide: 23
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The Current Approach: Reynolds, Jameel & Flood (contd.)
•
•
In the public interest:
–
Is the subject matter of the article a matter of public interest? If so, does the defamatory statement
contribute to that public interest element? (see Lord Hoffmann in Jameel v Wall Street Journal
Europe Sprl [2007] 1 AC 359)
–
The important role of editorial discretion
Publisher acted responsibly:
–
Slide: 24
The Reynolds checklist: “Depending on the circumstances, the matters to be taken into account
include the following. The comments are illustrative only. 1.The seriousness of the allegation. The
more serious the charge, the more the public is misinformed and the individual harmed, if the
allegation is not true. 2. The nature of the information, and the extent to which the subject matter is
a matter of public concern. 3. The source of the information. Some informants have no direct
knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4.
The steps taken to verify the information. 5. The status of the information. The allegation may have
already been the subject of an investigation which commands respect. 6. The urgency of the
matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff.
He may have information others do not possess or have not disclosed. An approach to the plaintiff
will not always be necessary. 8. Whether the article contained the gist of the plaintiff's side of the
story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need
not adopt allegations as statements of fact. 10. The circumstances of the publication, including the
timing. (Reynolds v Times Newspapers Ltd [2002] 2 AC 127
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The Current Approach: Reportage
•
“Reportage is a special, and relatively rare, form of Reynolds privilege. It arises
where it is not the content of a reported allegation that is of public interest, but
the fact that the allegation has been made. It protects the publisher if he has
taken proper steps to verify the making of the allegation and provided that he
does not adopt it....
•
...The position is quite different where the public interest in the allegation that is
reported lies in its content. In such a case the public interest in learning of the
allegation lies in the fact that it is, or may be, true. It is in this situation that the
responsible journalist must give consideration to the likelihood that the allegation
is true. Reynolds privilege absolves the publisher from the need to justify his
defamatory publication, but the privilege will normally only be earned where the
publisher has taken reasonable steps to satisfy himself that the allegation is true
before he publishes it” (Flood v TNL [2012] UKSC 11
Slide: 25
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The New Approach Under s.4
•
The common law defence known as Reynolds is abolished (s.4(6)
•
The new defence under subsection (1) requires the defendant to show the
statement complained of was, or was part of a statement on a matter of public
interest and:
– The subjective element: a belief that the publication was in the
public interest
– The objective element: that the belief is reasonable
•
Slide: 26
Reportage is defined in s.4(3) and limited to “accurate and impartial” accounts of
a “dispute to which the claimant was a party”, which also satisfy subsection (1)
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Key Issues
•
“Reasonable” belief publishing is in public interest vs “responsible”
publication
•
The core importance of the publisher‟s evidence
•
How to address legal advice privilege?
•
What role editorial judgment? - “such allowance as it considers appropriate”
(s.4(5))
•
The Reynolds checklist vs “all the circumstances of the case” (s.4(2))
•
Defining the limits of reportage
•
Traditional common law qualified privilege (outside Reynolds) is untouched
Slide: 27
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Section 3 of the Defamation Act
“HONEST OPINION” Some Unanswered Questions
RICHARD RAMPTON QC
JONATHAN SCHERBEL-BALL
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Introduction
• Detailed Explanatory Notes on the interpretation of this section. In this
instance, they may raise more questions than answers.
• Explanatory Notes state that section 3 “broadly reflects the current law while
simplifying and clarifying certain elements, but does not include the current
requirements for the opinion to be on a matter of public interest”.
• It is those “simplifications” and “clarifications” in the section which are likely to
pose challenging questions.
• Important to note that section 3(8) expressly abolishes the common law
defence of fair comment.
Slide: 29
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The First Condition
Section 3(2). The first condition the defendant must fulfil is that:
“…the statement complained of was a statement of opinion” (emphasis added)
This leads to two questions:
i.
Who will determine what the statement complained of was (is)? Is that an objective or a
subjective question?
– This is essentially a question of meaning which the court will decide, applying the single
meaning test, which is objective
ii.
Who will determine whether that statement was a statement of opinion (as opposed,
presumably, to a statement of fact)? Is that an objective or a subjective question?
– In consequence of (i), and despite the use of the past tense, it is likely that the court must
also decide this second question (essentially “fact or opinion”?), basing itself on its finding
as to what “the statement complained of” is? Again, this is an objective question
Slide: 30
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The Second Condition
Section 3(3). The second condition the defendant must fulfil is that:
“the statement complained of indicated, whether in general or specific
terms, the basis of the opinion” (emphasis added)
• The basis of the opinion is presumably either “the factual basis” or “the
subject-matter” although paragraph 22 of the Explanatory Notes suggests
that “factual basis” is what is meant
Slide: 31
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The Third Condition – “Any Fact”
Section 3(4). The third condition actually contains two (alternative) conditions, viz:
(a)
“That an honest person could have held the opinion on the basis of… any fact which existed at the time the
statement complained of was published”.
•
What is meant by “any fact”? If it means what it says, then there will be no room for the application of the common
law rule that the fact(s) relied on by the defendant in support of his opinion must be viewed in the light of such other
facts as may show that no honest person could have held the opinion in question on the basis of the full facts – e.g.
Branson v Bower (No 2) [2002] QB 737
•
Paragraph 23 of the Explanatory Notes states that “the existing case law on the sufficiency of the factual basis is
covered by the requirement that “an honest person” must have been able to hold the opinion. If the fact was not a
sufficient basis for the opinion, an honest person would not have been able to hold it.” However this is circular, as
the sentence which immediately precedes it makes clear that “any relevant fact or facts” (emphasis added) will be
sufficient as the basis for the honest person‟s opinion, which takes one back to the wording of the subsection
•
Although proof that a defendant knew the facts that undermined or destroyed the factual basis on which he relied in
support of his defence might well result in a finding under s.3(5) that s/he did not honestly hold the opinion he
expressed, this is not certain, and in any case does not accommodate the defendant who did know those facts, and
who may in consequence have a good defence based on a single fact
•
If this analysis is correct, it represents a radical departure from the position as it was under the common law
Slide: 32
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The Third Condition – Privileged Statements
Alternatively, condition 3(4)(b):
“That an honest person could have held the opinion on the basis of…anything asserted to be a fact in a privileged
statement published before the statement complained of.”
•
What does “anything asserted to be a fact in a privileged statement” mean? Does the assertion that the “thing” is a
fact have to appear in the privileged statement or can it be an assertion by the defendant in the publication
complained of. Probably the former, but the language does not entirely exclude the latter
•
What does “published before the statement complained of” mean? How does this impact upon a publication that
contains simultaneously unpublished material which is privileged and also defamatory opinions based upon that
material?
•
This difficulty is compounded by the fact that the common law defence of fair comment is abolished by section 3(8).
This has the result that reliance on privileged statements as the basis of opinion is now confined to the categories of
statutory privilege specified by section 3(7). In consequence, there are many kinds of statements that are privileged
at common law, but not by statute, which cannot now be used as the basis for an opinion, unless they are proved to
be true
Slide: 33
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Section 5 of the Defamation Act
“OPERATORS OF WEBSITES”
JANE PHILLIPS, CATRIN EVANS
HANNAH READY
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Introduction to Section 5
•
Section 5 of the Act introduces a completely new defence to defamation
claims available to website operators who follow a specific procedure to be
set out in “Regulations”
•
Draft Regulations have been issued
•
The Ministry of Justice apparently finished consulting on the Guidance and
FAQs which accompany the draft Regulations at the end of August
•
It is believed that the Regulations will be laid before Parliament in the
Autumn. The following is based on the Draft Regulations
Slide: 35
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Overview
•
The section applies where “an action for defamation is brought against the
operator of a website in respect of a statement posted on the website”: 5(1)
•
It provides a defence to “operators” if “it was not the operator who posted the
statement on the website”: 5(2)
•
If a statement posted on the operator‟s website is made by an identifiable author
(ie. someone who the Claimant has sufficient information to bring defamation
proceedings against) the defence is unconditional, and can only be defeated if
the Claimant can prove that the operator has acted with malice: 5(3)(a), 5(4)
and 5(11)
•
If the author is unidentifiable, the defence is conditional upon compliance with
the Regulations: 5(3), 5(5), 5(6)
Slide: 30
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The Procedure
•
Slide: 31
Under the procedure a complainant is required to send a Notice of Complaint to the
website operator containing prescribed information including:
–
The complainant‟s name: 5(6)(a)
–
The complainant‟s email address: Reg. 2(a)
–
The statement complained of: 5(6)(b)
–
The location of the statement complained of on the website (usually the URL): 5(6)(c)
–
Why it is said to be defamatory of the complainant: 5(6)(b)
–
What defamatory meaning the complainant ascribes to the statement complained of:
Reg. 2(b)
–
In what respects the complainant believes that the statement is factually inaccurate or
opinions not supported by facts: 5(3)(b), 5(6) and para. 2 of the Regs
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The Procedure (contd.)
•
The complainant must also confirm:
– That he “does not have sufficient information about the poster to bring
proceedings against that person”: Reg 2(d)
 “Sufficient information” is not defined in the Act or the Regs. Although
the Guidance notes give the example of the poster‟s name and
postal address
– Whether he consents to the operator providing the complainant‟s name and
email address to the poster
 The complainant does not have to consent to this and if he does not,
the operator must redact the information from the Notice of Complaint
before he sends it to the poster: see para. 14 of the Guidance notes
and Answer 23 of the FAQ‟s
Slide: 38
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The Website Operator
•
The website operator is to communicate the position to the poster (if it has
the means to do so), who then has a chance to reply and provide their
contact details. Having complied with the procedure, the website operator
can avail itself of the defence under s. 5, regardless of the position as
between the complainant and the poster
•
S. 5 has drawn comparisons with the existing defences for website
operators under the E-Commerce Regulations, and it will be interesting to
see how the two defences will interact
Slide: 39
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The Notice of Complaint
Dear Sir,
[THIS SHOULD BE SENT TO THE OPERATOR OF THE WEBSITE ON WHICH
THE POSTING HAS BEEN PUBLISHED]
We act on behalf of John Smith, the well-known radio and television presenter, who
can be contacted through us at the following email address: xxxxx@xxx.com
[THE NOTICE MUST IDENTIFY THE NAME OF THE COMPLAINANT AND AN
EMAIL ADDRESS WHERE HE/SHE CAN BE CONTACTED]
Re: the anonymous postings on your website at URL: www.xxx.com
[THIS SHOULD IDENTIFY WHERE ON THE WEBSITE THE STATEMENTS
COMPLAINED OF WERE PUBLISHED. IDEALLY, BY PROVIDING THE UNIFORM
RESOURCE LOCATOR (URL)]
Slide: 40
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The Statements
The statements complained of
• On 1 October 2013, a person posting under the pseudonym “Truthteller” published the
following three separate statements on your website, all of which are defamatory of
our client
– “John Smith is a prat!” [www.xxx1.com]
– “There's something you should all also know about John Smith - he's a convicted
paedophile.” [www.xxx2.com]
– “Just so everyone knows, John Smith has recently been forced to settle his libel claim
against a newspaper that said terrible things about him for no money... what does that
tell you!” [www.xxx3.com]
[THE STATEMENTS COMPLAINED OF SHOULD BE IDENTIFIED IN TERMS AND
WITH THEIR INDIVIDUAL URL]
Slide: 41
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Defamatory?
• Each of these statements is clearly defamatory of our client and has caused our client
serious harm to his hard-earned reputation as a much-loved presenter. Moreover, they are
likely to cause further harm to our client‟s reputation the longer they are left up on your
website. Anyone reading these statements about our client, either separately or together,
would be left in no doubt that no-one should associate with our client, given his appalling
criminal behaviour. Our client has already been contacted by one of his employers requiring
his explanation for these posts
[THE COMPLAINANT IS REQUIRED TO STATE WHY HE CONSIDERS THE STATEMENT TO
BE DEFAMATORY OF HIM. THE NOTES STATE THAT “BROADLY SPEAKING THE
COMPLAINANT SHOULD FOCUS ON EXPLAINING THE HARM THAT THE STATEMENT
HAS CAUSED OR IS LIKELY TO CAUSE TO HIS OR HER REPUTATION, BEARING IN MIND
THE SERIOUS HARM THRESHOLD IN SECTION 1 OF THE ACT]
Slide: 42
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The First Statement
• Defamatory meaning and inaccuracies
– The first statement means that our client is a prat or a fool. He is not, nor (if, which is
denied, this is held to be an expression of opinion) are there any grounds at all to
support such an opinion
[THE COMPLAINANT MUST SET OUT THE DEFAMATORY MEANING WHICH HE SAYS THE
STATEMENTS BEAR AND WHY THEY ARE FACTUALLY INACCURATE OR OPINIONS NOT
SUPPORTED BY FACT. THIS IS SAID TO BE IN ORDER THAT THE POSTER CAN ASSESS
WHETHER OR NOT THE STATEMENT IS OR MIGHT BE DEFAMATORY AND TO REACH AN
INFORMED DECISION ON HOW TO RESPOND. THE NOTES ALSO STATE THAT DETAILED
EVIDENCE NEED NOT BE PROVIDED TO SUPPORT HIS POSITION]
This paves the way for the operator to deny that the words complained of are defamatory of the
complainant and/or bear this defamatory meaning
Slide: 43
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The Second Statement
• The second statement clearly means that our client is a convicted paedophile
and is therefore guilty of one of the most heinous of all criminal offences. This
is completely untrue. Our client is not a paedophile, nor has he ever been
convicted of being a paedophile. In fact, our client has never been convicted
of
any
offence at all
[THE COMPLAINANT NEED NOT PROVIDE DETAILED INFORMATION TO
SUPPORT HIS POSITION AS THIS WOULD BE A MATTER FOR
SUBSEQUENT LEGAL PROCEEDINGS]
Slide: 44
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The Third Statement
• The third statement clearly means that there was, or there were reasonable grounds to
suspect that there was, some truth in the terrible things that a newspaper had said
about our client, requiring him to settle his libel action against the newspaper on very
unfavourable terms, including no payment of damages or costs
• As the terms of our client‟s settlement of his libel action against the Daily Rag are
confidential, we are unable to provide further information on this at the moment. We
have written to the newspaper to ask for a limited release from the confidentiality
clause in order to provide you with a full response on this issue
This is intended to hint at the fact that but for the confidentiality clause the complainant
would be able to tell them that this was untrue
Slide: 45
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The Poster
• Unfortunately, given the fact that the person posting the statements complained
of has chosen to hide behind a pseudonym (and one which reinforces the
defamatory meaning of the words complained of), we and our client have been
unable to trace him or her in order to commence proceedings for libel against him
or her. The poster‟s name and/or email address and/or postal address are not
identifiable from his or her postings
[THE COMPLAINANT MUST CONFIRM THAT HE DOES NOT HAVE SUFFICIENT
INFORMATION ABOUT THE POSTER TO BRING PROCEEDINGS AGAINST
THAT PERSON. ALTHOUGH AT THIS STAGE THE COMPLAINANT NEED NOT
SPECIFY THE STEPS TAKEN TO IDENTIFY THE POSTER, THESE STEPS MAY
BECOME RELEVANT IF PROCEEDINGS FOLLOW AN OPERATOR‟S FAILURE
TO COMPLY WITH THE PROCESS]
Slide: 46
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And Finally…
• Accordingly, our client requires you to remove the statements complained of
from your website immediately as every moment they remain available to the
public, our client‟s reputation suffers even more harm
• Our client consents to his name and the email address provided above to be
released by you to the poster
[THE NOTES STATE THAT A COMPLAINANT MAY NOT WISH HIS DETAILS
TO BE PROVIDED TO THE POSTER. THERE IS OFTEN A LEGITIMATE
CONCERN IN RELEASING ANY NAME OR EMAIL ADDRESS TO THE
POSTER IN A CASE SUCH AS THIS AS HE MAY USE IT TO FURTHER
HARASS THE COMPLAINANT]
Slide: 47
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The Operator‟s Response
• The operator will have the following options on receiving a valid notice:
1) It can follow the steps in the Schedule to the 2013 Regulations and rely on the s.5
defence
2) It can ignore the s.5 notice procedure and, if sued as liable for publication, try to
defend, probably on the following common bases:
 E.g. that the statement is not defamatory – such as the first statement complained
of by John Smith; and/or the complaint may be a Jameel abuse;
 and/or on its face the statement is defamatory – such as the third statement of
John Smith - but insufficient information has been provided to enable the operator
to adjudge whether the poster may have a defence, such as truth, and it can seek
to rely on Reg. 19 of the Electronic Commerce (EC Directive) Regulations 2002; or
other defences e.g s.1 of the 1996 Act
Slide: 48
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(1) Establishing a s.5 Defence Under the Schedule
• The operator must first take the following steps on receipt of a valid notice of complaint
(para 1 of the Schedule to the Regulations):
– Within 48 hours of receipt the operator must send to the poster a notification in writing (email would
suffice) that contains the following: a copy of the complaint (redacting information that could identify
the complainant where he has requested this); notice that the statement complained of may be
removed unless the operator receives a written response from the poster which must include:
 Clarification as to whether the poster does or does not wish the statement to be removed;
 If the poster does not wish it to be removed, his name and postal address; (the purpose of this
is to facilitate if possible direct resolution between the complainant and poster); and
 An indication as to whether the poster consents to his contact details being sent by the operator
to the complainant
•
Note that the operator must also notify the poster that if the poster does not consent to this the operator
will not disclose them unless ordered to do so by the court
Slide: 43
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(1) Establishing the Defence (contd.)
• To qualify for the s.5 defence the operator must notify the complainant within
48 hours of receipt of his complaint that it has received his notice and notified
the poster in accordance with the above requirements
• Where the operator has no means of contacting the poster these
requirements do not apply and the operator must within 48 hours of receiving
the complaint remove the statement (Reg 2(1)). The operator is only to be
treated as having the means if they include access to the poster‟s private
electronic
messaging
(Reg 2(2))
Slide: 50
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The Response of the Poster
• Depending on the poster‟s response to the complaint, the operator may or may not have to
take the statement complained of down in order to avail itself of the s.5 defence
• The poster must respond in writing by midnight at the end of the 5th day after the day on
which the notification was sent (para 1(1)(b)(i) of the Schedule). Potential difficulty in extra-
jurisdictional situations
• The Regulations envisage 5 potential sequences of events arising from posters‟ responses,
although not all possible outcomes are covered and it seems unlikely that in practice all
posters‟ responses would fit into neat categories. E.g. it does not address the impact on the
s.5 defence of the poster himself removing or editing the statement
• If the operator fulfills the applicable requirements in the Schedule it will have a s.5 defence,
including those who moderate comments (s.5(12))
Slide: 51
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(a) Poster Fails to Reply within Time
• If the poster does not reply within time the operator must do the following to have
a defence:
– Within 48 hours of the end of the period specified for replying remove the
statement from the specified locations on the website; and
– Inform the complainant in writing that it has been removed. (para 4 of the
Schedule)
– The poster may be pursued by the complainant for damages, initially e.g. via
the Norwich Pharmacal route
Slide: 52
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(b) Poster Does Not Provide All Required Information
• If the poster does not provide information as to whether (a) he wishes the statement to be left up or
taken down and, (b) if the latter, his contact details and (c) whether he consents to them being
passed to the complainant, then in order to rely on the s.5 defence the operator must remove the
statement from the specified locations within 48 hours of receipt of the poster‟s response. (para 5
of the Schedule)
• The operator must also notify the complainant in writing that the statement has been removed
• The operator must also remove the statement if it considers that the name and address provided by
the poster are “obviously false” (para 5(3) of the Schedule)
• The test is whether a reasonable website operator would consider it obviously false. Other than
where the name of someone very famous is provided or the address for example of “10 Downing
St” it is hard to see how this could be satisfied
• The poster may face a separate action for damages by the complainant, via Norwich Pharmacal
proceedings against the operator
Slide: 53
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(c) Poster Agrees to Statement Being Removed
• Where the poster responds within time and states his agreement to the
statement complained of being removed, within 48 hours of receipt of the
poster‟s response the operator must, in order to avail itself of the defence,
remove the statement and notify the complainant in writing (para 6 of the
Schedule)
• In this scenario the poster does not have to provide his name or contact
details to the operator (even though the operator may already have them, if
for example it is a blog site operator)
• The complainant may however seek a Norwich Pharmacal order for
information as to the poster‟s identity and then pursue him for damages
Slide: 54
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(d) Poster Objects to Statement Being Removed/Consents to Name Being
Disclosed
• If the poster does not agree to the statement being removed but provides
and consents to his name and contact details being provided to the
complainant (possibly the least likely scenario) – then the operator will have
a s.5 defence – and need not remove the statement - as long as it notifies
the complainant in writing within 48 hours that the statement has not been
removed and the poster does not agree to it being removed (para 7 of the
Schedule)
• The notice must also provide the poster‟s contact details to the complainant
• The complainant can then deal directly with the poster
Slide: 55
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(e) Poster Objects to Statement Being Removed and Name Being Disclosed
• Where the poster objects to the removal of the statement and disclosure of
his contact details the operator is not obliged to remove the statement and
will have a defence if it provides the information to the complainant in (d)
above save for contact details. It must be made clear that the poster does not
consent to his contact details being disclosed (para 7 of the Schedule)
• The complainant may then apply for Norwich Pharmacal relief for evidence
as to the poster‟s identity
Slide: 56
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What If the Poster Removes It Himself?
• Can the operator still rely on s.5 if the poster himself removes or edits the statement after
notification from the complainant has been received by the operator, or after the operator
serves notice on the poster?
• The Schedule 1 scenarios unhelpfully do not allow for this. But it would seem counter to the
purpose of the section if an operator could not rely on the defence because the poster rather
than the operator did the very thing the section is geared towards achieving
• It is difficult to see what else could be achieved by the complainant with the operator‟s help.
i.e The Govt‟s intention was apparently to facilitate the resolution of disputes directly
between complainant and poster. And the Schedule provides that where a poster agrees to
removal by the operator the poster need not give his contact details to the operator
Slide: 57
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Persistent Re-posting
• Where the same poster persistently posts the same or substantially the same material
on the same website a different approach is required by the operator (para 8 of the
Schedule)
• On the first repeat posting, once notified in accordance with s.5(6) and Reg 2, the
operator must follow the steps above under Schedule 1
• However, on the second or any subsequent occasion on which the same or
substantially the same statement is posted on the same site, in order to have the s.5
defence the operator must remove it within 48 hours of receipt of the latest notice
• The burden is on the complainant to notify the operator that this is the third or more
occasion of complaint. The purpose is to protect the complainant from having to
comply with the s.5 procedure over and over again
• It is for the operator to determine whether the statement is substantially the same; a
question of judgment and potentially a significant burden
Slide: 58
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(2) Operator Can Ignore s.5 and Rely on Reg 19
•
The operator may not wish to use the s.5 procedure - because for example it considers its protection for its
users‟ free speech rights inadequate when compared to the relatively liberal defence in Reg 19 of the
Electronic Commerce (EC Directive) Regulations 2002
•
In particular it may be thought that the s.5 approach is too arbitrary in its approach to when a statement
must be taken down, sets too low a hurdle for the complainant and that in fact the regime is simply a
“notice and take down” procedure
•
In this regard section 5(11) may be concerning – it allows the claimant to defeat the s.5 defence on proof
that the operator acted “with malice in relation to the posting of the statement”. Malice is not defined. The
Explanatory Notes to the 2013 Act state: “This might arise where, for example, the website operator had
incited the poster to make the posting or had otherwise colluded with the poster” (para 42). Whether that is
intended to be akin to a dominant improper motive is not known
•
Will s.5(11) lead to a claimant arguing that the defence was nullified after he notified the operator of his
belief that aspects of the statement were inaccurate or, if opinion, were not supported by fact (cf Reg
2(c))? This construction would surely not be consistent with the purpose of the section; i.e. to facilitate take
down or direct resolution
Slide: 59
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(2) s.5/Reg 19 (contd.)
• On the other hand, the operator will have a defence under Reg 19 (as currently applied)
where the claimant has not provided sufficient information to the operator for it to be fixed
with actual knowledge of unlawful activity by the poster; e.g. knowledge that the statement
complained of is libellous (cf defamatory) – i.e. untrue or unprotected by another defence –
see Davison v Habeeb [2012] 3 CMLR 6 at [68]
• E.g. John Smith‟s third complaint does not provide sufficient information for the operator to
be able to assess whether, as he claims, the words complained of are false. The operator
would have a good prospect of success with a Reg 19 defence in these circumstances
• Whereas, under the s.5 regime, if “Truthteller” did not reply within the stipulated time or
declined to say whether he agreed to the statement being removed, the operator would have
to remove it to be protected by the s.5 defence, despite the mere assertion of falsity. Or, in
the case of the first statement (“Smith is a prat!”), even though it would not pass the section
1 test
Slide: 60
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(2) s.5/Reg 19 (contd.)
• Could the requirement for the complainant to set out the aspects of the
statement which he believes to be factually inaccurate or opinions not
supported by fact (Reg 2) make the Reg 19 defence redundant?
• It seems not. The test in Reg 2 is not entirely clear. But on its face it is
different:
– Reg 2 only requires an assertion of subjective belief of falsity. Reg 19 (as
interpreted in Davison and Tamiz v Google [2012] EMLR 24) requires the
information provided to be sufficiently precise and well substantiated to
fix the operator with actual knowledge of unlawful conduct
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Concluding Observations
• How useful will s.5 actually be for operators?
• E.g. domestic newspapers with public comment feeds may simply remove
the comment complained of instead of devoting time to jumping through the
Schedule 1 hoops, contacting the poster etc
• A US domiciled operator on the other hand may prefer to continue to review
the merits of the complaint and try to rely on Reg 19 to protect users‟ free
speech rights
Slide: 62
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Concluding Observations (contd.)
• S.5 is potentially a good addition in that it should in theory reduce the number of
opportunistic complaints intended to pin liability for publication on neutral
operators, whilst facilitating resolution between the 2 main protagonists
• However it is to be hoped that the burdensome bureaucracy of the procedure
does not put operators off using it
• And the extent of cooperation to be expected by posters is of course unknown
• Ultimately, there will be room for defences under s.5, s.1 Defamation Act 1996
and Reg 19 to be run together, perhaps as well as the new s.10 of the 2013 Act
Slide: 63
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Section 8 of the Defamation Act 2013
“NOT A SINGLE PUBLICATION RULE“
IAN HELME
Copyright 2013 One Brick Court - All Rights Reserved
Multiple Publication Rule
(1) The rule that each separate publication gives rise to a separate cause of action
(the „multiple-publication rule‟) remains good law
Slide: 65
•
Multiple-publication rule is that “...each separate publication gives rise to a separate cause of
action”: Jameel v Dow Jones Inc [2005] QB 946 or “each publication is a separate tort”:
Berezovsky v Michaels [2000] 1 WLR 1004; both from Duke of Brunswick v Harmer
(1849) 14 QB 185
•
No express abolition of common-law rule (unlike sections 2(4), 3(8) and 4(6))
•
Section 8 is fundamentally different, for example, from the position as set out in the Uniform
Single Publication Act (1952) which provides that “No person shall have more than one
cause of action for damages for libel or slander or invasion of privacy or any other tort
founded upon any single publication or exhibition or utterance, such as any one issue of a
newspaper or book or magazine or any one presentation to an audience or any one
broadcast over radio or television or any one exhibition of a motion picture”
•
In fact Section 8(3) – the operative part of the section – assumes the continuing existence of
the common law rule
Copyright 2013 One Brick Court - All Rights Reserved
Section 8(3) – Rule of Limitation
(2) Section 8(3) disapplies – in specific circumstances – the most obvious consequence of the
common law rule: that each publication has its own limitation period. This means that
Section 8 contains a rule of Limitation, not of Publication
•
Section 8(3) provides that “For the purposes of section 4A of the Limitation Act 1980...
any cause of action against the person for defamation in respect of the subsequent
publication is to be treated as having accrued on the date of first publication”
•
Brought in because of the potential injustice of the common law rule: see the Duke of
Brunswick‟s case. One answer had already been offered by the common law in the
form of the doctrine of abuse: “[the claimant] acquired a technical cause of action but
we would today condemn the entire exercise as an abuse of process”: Jameel. There
is discussion of the relationship between delay and abuse in Adelson v Anderson
[2011] EWHC 2497
Slide: 66
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Section 8(3) – Rule of Limitation (contd.)
Slide: 67
•
No change was necessarily required by Article 10: Times Newspapers Ltd
v UK [2009] E.M.L.R. 14. Limitation is in principle within Member States‟
margin of appreciation. But “libel proceedings brought against a newspaper
after a significant lapse of time may well, in the absence of exceptional
circumstances, give rise to a disproportionate interference with press
freedom under art.10”
•
If the section does not apply the Defendant can still not rely on his (or
anyone else‟s) previous publications in mitigation: Dingle v Associated
Newspapers Ltd [1964] A.C. 371; Rath v Guardian News & Media Ltd
[2008] EWHC 398.
•
The common law may have been contemplating a loosening of these
principles through the prism of Jameel: Ronaldo v Telegraph Media Group
Ltd [2010] EWHC 2710
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Practical Operation: Three Stages
(3) It is unclear how the new rule will operate as a matter of practice. It appears that
there are three distinct stages: (a) the requirements in subsection (1); (b) the
exception in subsection (4); and (c) the discretion of Section 32A of the
Limitation Act 1980, retained by subsection (6)
• Limitation is a defence: Abdulla v Birmingham City Council [2012]
ICR 1419. It seems likely that a Defendant seeking to rely upon
Section 8 will need to make an application in the normal way, with
evidence
• From the respective wording of subsections (1) “This section applies if”
and (4) “This section does not apply...if” it would appear that if there is
a burden to be borne it is by a Defendant under the former and, if
satisfied, the Claimant under the latter
Slide: 68
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Three Stages (contd.)
Slide: 69
•
Subsection (6) states that the section “does not affect the court‟s discretion
under section 32A”. Invocation of that section by a Claimant is normally by
application and “It is for the claimants to make out a case for the
disapplication, or relaxation, of the normal rule”: Steedman v BBC [2002]
EMLR 17. It is unclear whether cross-applications will be necessary
•
It remains to be seen whether there is ambit for the application of the
Jameel doctrine outside these specific parameters; in particular if a
Defendant cannot satisfy the requirements of subsection (1)
•
Potentially significant consequences for Pre-Action Protocol complaints and,
in particular, responses from Defendants
•
Section 8(3) limited to defamation claims
Copyright 2013 One Brick Court - All Rights Reserved
Stage (1): Requirements of Section 8 (1)
(4) The requirements of subsection (1) are not without considerable complexity. Crucially,
the only straightforward reading of the text severely restricts the protection offered to
existing archive material
• Section 8(1) provides that: “This section applies if a person – (a) publishes a
statement to the public (“the first publication”), and (b) subsequently publishes
(whether or not to the public) that statement or a statement which is substantially the
same.” Section 8(2) provides that subsection (1) (a) catches “publication to a section
of the public”
• The first statement must be published. It seems clear from Section 15 that the
subsection requires proof of actual publication, not merely availability: “In this Act –
„publish‟ and „publication‟... have the meaning they have for the purposes of the law of
defamation generally.” In relation to the internet this would seem to turn Al-Amoudi v
Brisard [2007] 1 WLR 113 around against Defendants
Slide: 70
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Section 8 (1) (contd.)
•
Publication before the commencement of the Act is completely irrelevant. This would seem the
only logical reading of Section 16(6): “In determining whether section 8 applies, no account is to be
taken of any publication made before the commencement of the section.” This has two important
consequences:
– The Section does not really come into effect until one year from the commencement date of the
Act; and
– Thereafter a Defendant must prove the first publication has been published after the
commencement date. For historical articles, this may be very difficult or even impossible
•
Publication must be to the public/section of the public. Huge potential for legal and factual
argument about the meaning of these words. The Explanatory Notes (para. 61) are almost wilfully
contradictory: “Publication to the public has been selected as the trigger point because it is from this
point on that problems are generally encountered with internet publications and in order to stop the
new provision catching limited publications leading up to the public at large. The definition in
subsection (2) is intended to ensure that publications to a limited number of people are covered
(for example where a blog has a small number of subscribers or followers)”
Slide: 71
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Section 8 (1) (contd.)
– The requirement suggests an issue of accessibility which sits uneasily both with
the express proof of publication condition and with subsection (3) which appears
to envisage a single publication date
– Section 1 of the 1996 Defamation Act uses the words to define its own ambit:
“„publisher‟ means a commercial publisher, that is, a person whose business is
issuing material to the public, or a section of the public, who issues material
containing the statement in the course of that business”
– The concept of „section of the public‟ is common in other areas of law and has
been subject of judicial analysis in those contexts: see e.g. Dingle v Turner
[1972] 2 W.L.R. 523 (charitable trusts) and Charter v Race Relations Board
[1973] A.C. 868 at 901 (race relations; with express warnings about reading
across from other areas of law). Arlidge & Eady on Contempt devotes
considerable text to its meaning in the context of Section 2(1) the Contempt of
Court Act 1981: §4-37-4.54
Slide: 72
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Section 8 (1) (contd.)
– The Explanatory Notes suggest that it is intended to include websites limited by subscription
or interest
– It is difficult to suggest other than it may be a matter of fact and degree in any particular case
Slide: 73
•
Both publications must be by the same person. If A publishes the first publication and A and B
publish the section publication, may B take advantage of the Section? Subsection (3) would
suggest not (“any cause of action against the person...”) but the idea of two separate limitation
periods for the same publication is awkward
•
Subsequent publication must be the same/substantially the same. Also considerable room for
argument. Whilst superficially similar to principles relating to injunctions and justification (now
section 2(1)) defences, in this context it is unlikely that the wording can relate only to meaning. It is
easy to envisage both: (a) two articles that have almost identical text but convey different
defamatory meanings; and (b) two articles that are entirely different but convey the same
defamatory meaning. See also the clear wording of Section 9(3). It would seem that it must relate to
content as „manner‟ is an issue for subsection (4). Again a question of fact and degree?
Copyright 2013 One Brick Court - All Rights Reserved
Stage (2): Exemption of Section 8 (4)
(5) The application of subsection (4) is already recognised as being one which will require
extensive precedent to illuminate. A similar, but different, principle operating in the United
States is a key battleground in federal and state jurisdictions
Slide: 74
•
Subsection (4) states “This section does not apply in relation to the subsequent
publication if the manner of that publication is materially different from the manner of
the first publication.” Subsection (5) lists matters “to which the Court may have regard”
as including: “(a) the level of prominence that a statement is given; (b) the extent of
the subsequent publication”
•
„Manner‟ and „materially different‟ are not defined. Nor does the subsection specify
how the Court determines whether the subsection applies, or what factors it must take
into account. The example offered in the Explanatory Notes (para. 61) seems to
contemplate a form of „comparative prominence‟ test, although if pushed too far this
would seem to undermine the purpose of the entire section. The question would
appear to be objective
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Section 8 (4) (contd.)
Slide: 75
•
It is not clear why „the extent of subsequent publication‟ has been specifically
identified as a consideration independent of extent of initial publication
•
There are various approaches in the US as to when there is a „new publication‟. As
there is a genuine „single publication rule‟ in the US, the question under which similar issues
arise is whether there has been a separate publication. The commentary to relevant rule in
the Restatement (Second) of Torts introduces a subjective element: there is a new
publication when it “is intended to and does reach a new group”. An example offered is a new
edition of a book.
•
US Courts have reached apparently more restrictive conclusions, whilst stating that it is
generally an issue of fact and degree: e.g. Firth v State (N.Y.Ct.Cl. 2000) 706 NYS2d 835;
Rinaldi v Viking Penguin, Inc (N.Y.1981) 420 N.E.2d 377; The Traditional Cat Association Inc
v Gilbreath (2004) 12 Cal Reporter 3d; Canatella v K van de Kamp (2007) 486 F.3d 1128;
Christoff v Nestle USA, Inc (2007) 62 Cal.Rptr.3d 122
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Stage (3): Discretion via Section 8 (6)
(6) The discretion in section 32A of the Limitation Act 1980 has become very important. It seems
difficult to imagine a case in which a Claimant, faced with an application from a Defendant under Section
8, would not invoke the Court‟s discretion under section 32A (at least as a precaution)
Slide: 76
•
Section 32A provides that the Court may direct that the limitation period for a defamation (or
malicious falsehood) claim be disapplied if “in all the circumstances of the case” it is “equitable to
allow an action to proceed” having regard to the balance of prejudice to the parties. Steedman
describes the nature of the discretion: “The discretion afforded by this section is largely unfettered.
It requires the court to balance any prejudice to the claimant on the one hand and the defendant on
the other in allowing the action to proceed or otherwise. All the circumstances of the case must be
had regard to in assessing the justice of the matter with particular reference to the length of, and
reasons for, the delay and the extent to which the passage of time since the expiration of the
limitation period has had an impact on the availability or cogency of relevant evidence”
•
The „all the circumstances‟ equitable test further undermines the certainty apparently
offered by Section 8(3). In Maccaba v Lichtenstein [2003] EWHC 1325 Gray J stated that the
power should only be exercised in „exceptional circumstances‟. There is a wide ambit for evidence.
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Section 9 of the Defamation Act 2013
“A NEW APPROACH TO FORUM
DISPUTES?”
AIDAN EARDLEY
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“There are few areas where the UK is stronger than in the law. The rule of law is one of our
greatest exports. English law was firmly established by the late 19th century as the
predominant law of commerce for international business transactions. Our law boasts the ideal
combination of predictability and flexibility and lawyers in the UK have rightly earned a
reputation for integrity and trust
Little wonder then that English law now provides the legal framework for most international
commercial transactions; while most of the litigation before Courts in the UK involves at least
one foreign party. Also, there are virtually no barriers for international law firms wishing to enter
the UK market, making London the home of more than 200 foreign law firms
This freedom to operate and the regard for law in the UK means confidence; and this
confidence has helped make UK legal services so important to our economy. The figures are
impressive - UK legal services generated £19.3bn in 2010, while legal services exports for
2010 totalled £3.6bn. And as the UK‟s economy emerges from a difficult period, the
Government is committed to supporting the growth of legal services. It is vitally important that
the country builds on this strength to support the recovery. “
Kenneth Clarke MP, 07.12.11
Slide: 78
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Is There a Libel Tourism Problem?
2009 statistics
– 291 defamation claims issued in High Court
– 34 had a “foreign connection”
– 5 cases with a defendant whose address was outside EU
– 2 of those cases were brought by claimants outside England &
Wales
The tip of the iceberg?
Source: Report of the Libel Working Group, MOJ, March 2010
Slide: 79
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The Current Position
1) Court must accept jurisdiction if Defendant domiciled in England & Wales
– Judgments Regulation (Council Regulation (EC) 44/2001), Art 2;
Owusu v Jackson [2005] QB 801
1) Court must accept jurisdiction if Defendant domiciled in another EU state,
Switzerland, Norway, or Iceland and words complained of published here
– Judgments Regulation Art 5(3); Lugano Convention 2007; Shevill v
Presse Alliance SA [1995] 2 AC 18
1) Court may decline jurisdiction if Defendant domiciled in some other state
– Common law doctrine of forum (non) conveniens
Slide: 80
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Forum Conveniens
•
Is England “clearly the appropriate forum in which the case should be tried in the
interests of all the parties and the ends of justice?”
Berezovsky v Michaels [2000] 1 WLR 1004
•
Relevant factors:
– Does publication here amount to “real and substantial tort”?
– Extent of publication here (including as a proportion of total publication)
– Extent of claimant‟s reputation here
– Subject matter
– Availability of witnesses and evidence
– (in order to rebut initial finding) legitimate personal or juridical advantage
requiring trial in England
Slide: 81
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What‟s Going to Change?
Defamation Act 2013, Section 9
9 - Action against a person not domiciled in the UK or a Member State etc
1) This section applies to an action for defamation against a person who is not domiciled:
a. In the United Kingdom
b. In another Member State;
c.
In a state which is for the time being a contracting party to the
Lugano Convention
(definitions in sub-sections (4) & (5))
Slide: 82
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Section 9 (2): New Provision Where Court Previously Had Discretion to Decline
Jurisdiction
(2) A court does not have jurisdiction to hear and determine an action to which
this section applies unless the court is satisfied that, of all the places in which
the statement complained of has been published, England and Wales is clearly
the most appropriate place in which to bring an action in respect of the
statement
Slide: 83
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A Small Change of Approach?
•
Substantial publication here no longer creates a presumption in favour of
accepting jurisdiction?
c.f. Berezovsky; King v Lewis [2005] EMLR 4
•
Defendant should not be punished for choosing online publication?
c.f. King v Lewis
•
Slide: 84
No longer a matter of discretion
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Explanatory Notes on Section 9 (2)
•
Slide: 85
“This means that in cases where a statement has been published in this jurisdiction and
also abroad the court will be required to consider the overall global picture to consider
where it would be most appropriate for a claim to be heard. It is intended that this will
overcome the problem of courts readily accepting jurisdiction simply because a claimant
frames their claim so as to focus on damage which has occurred in this jurisdiction only.
This would mean that, for example, if a statement was published 100,000 times in
Australia and only 5,000 times in England that would be a good basis on which to
conclude that the most appropriate jurisdiction in which to bring an action in respect
of the statement was Australia rather than England. There will however be a range of
factors which the court may wish to take into account including, for example, the amount of
damage to the claimant‟s reputation in this jurisdiction compared to elsewhere, the extent
to which the publication was targeted at a readership in this jurisdiction compared to
elsewhere, and whether there is reason to think that the claimant would not receive a fair
hearing elsewhere.”
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Section 9 (3): Expanded Definition of “Statement Complained of”
(3) The references in subsection (2) to the statement complained of include
references to any statement which conveys the same, or substantially the
same, imputation as the statement complained of
Slide: 86
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