Defamation Act 2013 Comes In To Force January 1st 2014

And so begins a new era of libel law…

The well-publicised and much debated Defamation Bill finally received Royal Assent on 25 April 2013. This, after the Leveson inquiry threatened to sink the Bill altogether, as the facts revealed by the investigation renewed public hostility towards the media. Ultimately however, this new Act, isn’t just about giving more freedom to the press, it is about encouraging public debate and a reform of libel law has been long overdue.

This article will highlight some of the more important changes to libel law and explain the possible implications it may have in the future.

Requirement of Serious Harm

The Act introduces a requirement that a statement must cause serious harm to the claimant’s reputation for it to be defamatory. In addition, if a business is to bring a claim, it would be required to show that the statement caused it serious financial loss. The introduction of this provision raises the bar for bringing a claim and seeks to discourage trivial claims.

New Statutory Defences

The Act has abolished the common law (law created by the courts) defences of justification, fair comment and the ‘Reynolds’ defence. These defences have been replaced with the following new statutory defences of:

• Truth – The defendant must show that the imputation conveyed by the statement complained of is substantially true. This defence will be treated in largely the same way as the old ‘justification’ defence.


• Honest opinion – the defendant must be able to show that:
  • the statement was an expression of opinion, not an assertion of fact;
  • the statement must indicate the basis of the opinion; and
  • the opinion must be one that an honest person could have held on the basis of a fact which existed at the time the statement was published or a privileged statement published before the statement complained of.

This new defence should provide better protection of people’s honest opinions than the old ‘fair comment’ defence did.

• Public interest – the defendant must show that the statement complained of was, or formed part of, a statement on a matter of public interest and that he reasonably believed that publishing the statement complained of was in the public interest.  This defence is more flexible than the old ‘Reynolds’ defence and it will be interesting to see how court’s perceive what is in the ‘public interest’ as this can be quite a subjective concept.

Increased protection for the operators of websites, secondary publishers and peer-reviewed scientific or academic articles

Where a defamatory statement is posted on a website, operators of the website now have a defence if they can show it was not them who posted it. The operator must be able to identify the person who posted the statement and if the claimant gives notice to the operator of their complaint, then the operator must respond to the notice in a prescribed way.

Greater protection is also offered to secondary publishers, such as booksellers, by taking away the court's jurisdiction to hear an action for defamation brought against them except where it is not reasonably practicable for the claimant to bring the action against the author, editor or publisher.

Furthermore, the publication of a statement in a scientific or academic journal is privileged, provided that:

1. the statement relates to a scientific or academic matter; and
2. before the statement was published in the journal an independent review of the statement’s scientific or academic merit was carried out by the editor of the journal and one or more persons with expertise in the scientific or academic matter concerned.

Introduction of a single publication rule

A defamation claim is subject to a one year limitation period. Under the old law, every publication of the defamatory material gave rise to a new claim with its own limitation period. This was causing indefinite liability for online publications as each hit on a website creates a new publication.

Under the new rule a claimant will only be able to bring an action within one year of the date of the first publication by the same publisher of that material to the public. A claimant however, can still bring a claim if the original material is republished by a new publisher or if the statement is re-published in a manner materially different from the first publication.

Other key changes

• Issue of Libel tourism is addressed by the Act by prohibiting defamation actions against defendants unless the court is satisfied that England is clearly the most appropriate place to bring an action.
• The Act extends the circumstances in which the defences of absolute and qualified privilege are available.
• Defamation cases will now be tried without a jury unless a court orders otherwise. This should result in quicker, more efficient and cheaper defamation actions.
• The Act gives the court power, if the claimant wins, to order the defendant to publish a summary of the judgment.
• The courts now have powers to order a website to remove a defamatory statement as well as powers to prevent people from distributing, selling or exhibiting material containing the statement.

For further information or advice relating to this issue, please contact Amanda Mehlin on 01689 887808 or email him at amanda.mehlin@cwj.co.uk.