On 25 April 2013 the Defamation Bill was given royal assent and became the Defamation Act 2013 (the Act).
Although its provisions are not yet in force, the government hopes the changes to the previous defamation laws will provide for a more balanced and fairer system particularly for peer-reviewed academic publications, public interest journalism and website operators.
A New Definition of Defamation
One of the major changes to the law is that the Act provides a new definition of defamation: a statement will be defamatory only if it has caused or is likely to cause serious harm to individuals’ or businesses’ reputations.
Furthermore, a business can only bring a claim for defamation if they have suffered, or are likely to suffer from, serious financial loss.
These changes to the definition of defamation are hoped to deter trivial claims but not claims from those who are seriously trying to protect their reputation.
Statutory Defences to Libel
Another change to the old law on defamation is the introduction of statutory defences to libel.
If the defendant can show that the statement published is true, is the opinion of an honest person knowing the facts or is in the public interest, then the defendant can use this as a defence to libel.
These defences replace the common law defences of justification, fair comment, and the ‘Reynolds’ defence (responsible journalism in the public interest), respectively.
User Generated Content
A further change to the law relates to the protection given to website operators in respect of ‘user generated content’ posted by third parties.
A defence that an operator can bring to a defamation claim is that they did not post the statement on the website. However, a website operator can only bring this defence if they can provide sufficient information about the party who posted the statement to the claimant, so that a claim can be brought against that third party.
Moreover, the defence would be defeated if the claimant can prove that they had sent a complaint to the website operator, and that the operator had not acted on the complaint in accordance with any provision contained in up-coming regulations.
Further provisions clarifying this defence are going to be set out in regulations, which will be brought in by statutory instrument.
Limitations on Claims
Finally, another key change to the law on defamation comes by the way of limitations of claims; before the Act, any new publication could lead to a new claim under the law.
The Act introduces a ‘single publication rule’ which means that a claimant will be prevented in bringing a claim against a publisher in relation to the same material published after a one year period starting from the date of the first publication.
However, a claimant can bring other claims against different publishers if the original material was republished by them or if the manner of publication was different to the first publication.
The implications of the Act are yet to be fully seen but the changes may mean less protection for defamed parties. If you are likely to be affected by these changes and need more advice, please contact us on 0207 611 4848.