Session 2012 - 13
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LORDS amendments to the

Defamation Bill

[The page and line references are to HL Bill 41, the bill as first printed for the Lords.]

After Clause 1

1

Insert the following new Clause—

 

“Arbitration Service for defamation and related civil claims against members of

 

Independent Regulatory Board

 

(1)    

The Lord Chief Justice shall establish a Defamation Recognition

 

Commission.

 

(2)    

Schedule (Recognition Commission) makes provision relating to the

 

Defamation Recognition Commission.

 

(3)    

The Defamation Recognition Commission shall certify bodies as

 

Independent Regulatory Boards in accordance with the criteria in Schedule

 

(Recognition Commission).

 

(4)    

An Independent Regulatory Board shall provide a recognised arbitration

 

service as set out in Schedule (Specialist Arbitration Service).

 

(5)    

A court shall take into account when awarding costs and damages whether

 

either party, claimant or defendant in a dispute has chosen not to use the

 

recognised arbitration service of an Independent Regulatory Board.

 

(6)    

A court shall award costs under subsection (5) on an indemnity basis unless

 

the interests of justice require otherwise.

 

(7)    

A court may order a successful party to pay all the costs of proceedings if

 

such party has unreasonably refused to use an available recognised

 

arbitration service.

 

(8)    

A court awarding in its judgment exemplary damages where a defendant

 

is guilty of a flagrant breach of a defendant’s rights can also take into

 

account whether—

 

(a)    

a claimant refused to use a recognised arbitration service;

 
 
Bill 13955/2

 
 

2

 
 

(b)    

a defendant refused to use or join a recognised arbitration service.”

2

Insert the following new Clause—

 

“Non-natural persons

 

(1)    

This section apples to an action for defamation brought by—

 

(a)    

a body corporate;

 

(b)    

other non-natural legal persons trading for profit; or

 

(c)    

trade associations representing organisations trading for profit.

 

(2)    

The permission of the court must be obtained in order to bring an action to

 

which this section applies.

 

(3)    

The court must strike out an application under subsection (2) unless the

 

body corporate can show that the publication of the words or matters

 

complained of has caused, or is likely to cause, substantial financial loss to

 

the claimant.

 

(4)    

Non-natural persons performing a public function do not have an action in

 

defamation in relation to a statement concerning that function.”

Clause 4

3

Page 2, line 34, leave out paragraph (b) and insert—

 

“(b)    

the defendant reasonably believed that publishing the statement

 

complained of was in the public interest.”

4

Page 2, line 35, at end insert—

 

“(1A)    

Subject to subsections (2) and (3), in determining whether the defendant

 

has shown the matters mentioned in subsection (1), the court must have

 

regard to all the circumstances of the case.”

5

Page 2, line 36, leave out subsection (2)

6

Page 3, line 8, leave out subsections (3) and (4) and insert—

 

“( )    

If the statement complained of was, or formed part of, an accurate and

 

impartial account of a dispute to which the claimant was a party, the court

 

must in determining whether it was reasonable for the defendant to believe

 

that publishing the statement was in the public interest disregard any

 

omission of the defendant to take steps to verify the truth of the imputation

 

conveyed by it.”

7

Page 3, line 14, at end insert—

 

“( )    

In determining whether it was reasonable for the defendant to believe that

 

publishing the statement complained of was in the public interest, the court

 

must make such allowance for editorial judgement as it considers

 

appropriate.”

Clause 5

8

Page 3, line 43, at beginning insert “Subject to any provision made by virtue of

 

subsection (6A),”

9

Page 4, line 4, at end insert—


 
 

3

 
 

“(6A)    

Regulations may make provision about the circumstances in which a notice

 

which is not a notice of complaint is to be treated as a notice of complaint

 

for the purposes of this section or any provision made under it.”

10

Page 4, line 8, leave out from “section” to “House” in line 9 and insert “may not be

 

made unless a draft of the instrument has been laid before, and approved by a

 

resolution of, each”

11

Page 4, line 10, at end insert—

 

“(9A)    

The defence under this section is defeated if the claimant shows that the

 

operator of the website has acted with malice in relation to the posting of

 

the statement concerned.”

Clause 6

12

Page 4, line 14, after “journal” insert “(whether published in electronic form or

 

otherwise)”

Clause 7

13

Page 6, line 6, at end insert “or its auditors”

Clause 13

14

Page 9, line 14, at end insert “, or

 

(b)    

any person who was not the author, editor or publisher of the

 

defamatory statement to stop distributing, selling or exhibiting

 

material containing the statement.

 

(1A)    

In this section “author”, “editor” and “publisher” have the same meaning

 

as in section 1 of the Defamation Act 1996.”

After Clause 17

15

Insert the following new Schedule—

 

“SCHEDULE

 

Recognition Commission

 

1          

This Schedule provides the method by which the Recognition

 

Commission may be constituted for the purposes of this Act.

 

2          

Appointments to membership of the Recognition Commission will be

 

made by the Lord Chief Justice.

 

3          

An individual may be appointed only if he or she has consented to act

 

and is—

 

(a)    

a present or former Civil Service Commissioner;

 

(b)    

a present or former holder of high judicial office (within the

 

meaning of Part 3 of the Constitutional Reform Act 2005); or

 

(c)    

a person who in the opinion of the Lord Chief Justice is suitable

 

for appointment having regard to their reputation and

 

experience and is independent of all political parties and all

 

media organisations.


 
 

4

 
 

4          

The Recognition Commission must consider whether an Independent

 

Regulatory Board body has—

 

(a)    

sufficient guarantees of independence, including suitable

 

independent, fair and transparent procedures for appointments

 

and funding,

 

(b)    

suitable functions, powers, personnel and resources to ensure

 

that it can fulfil its principal objectives effectively,

 

(c)    

an appropriate standards code,

 

(d)    

an arbitration service able to deal with defamation and related

 

civil claims, effective processes for upholding standards,

 

(e)    

an efficient procedure for handling complaints, and

 

(f)    

is open to all news publishers.

 

5          

The Recognition Commission must review a recognised regulator at

 

least once during the period of two years beginning with the date of

 

certification, and at intervals of not more than three years after that.

 

6          

If having reviewed a body the Recognition Commission is no longer

 

satisfied that it complies with paragraph 4, the Recognition Commission

 

must consult the body and give directions designed to ensure that the

 

body complies with paragraph 4 within a reasonable time.

 

7          

If the body fails to comply with directions given under paragraph 6 the

 

Recognition Commission must revoke the body’s certification.

 

8          

The Recognition Commission shall not be involved in the regulation of

 

any subscriber to an Independent Regulatory Board.”

16

Insert the following new Schedule—

 

“SCHEDULE

 

Specialist Arbitration Service

 

1          

An Independent Regulatory Board must provide an Arbitration Service

 

in relation to defamation and related civil legal claims drawing on

 

independent legal experts on a cost-only basis to the subscribing

 

member.

 

2          

The arbitration rules must provide for a fair, quick and inexpensive

 

process, which is inquisitorial and free for complainants to use (save for

 

a power to make an adverse order for the costs of the arbitrator if

 

proceedings are frivolous or vexatious).

 

3          

The arbitrator shall have the powers set out in section 48(3) to (5) of the

 

Arbitration Act 1996.

 

4          

The arbitrator must be able to hold hearings where necessary or dispense

 

with them where not necessary.

 

5          

The process must include provision for frivolous or vexatious claims to

 

be struck out at an early stage.”


 
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Revised 26 February 2013