Session 2012 - 13
Internet Publications
Other Bills before Parliament



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


Insert the following new Clause—


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


Independent Regulatory Board



The Lord Chief Justice shall establish a Defamation Recognition





Schedule (Recognition Commission) makes provision relating to the


Defamation Recognition Commission.



The Defamation Recognition Commission shall certify bodies as


Independent Regulatory Boards in accordance with the criteria in Schedule


(Recognition Commission).



An Independent Regulatory Board shall provide a recognised arbitration


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



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.



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


the interests of justice require otherwise.



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.



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 claimant refused to use a recognised arbitration service;

Bill 13955/2





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


Insert the following new Clause—


“Non-natural persons



This section apples to an action for defamation brought by—



a body corporate;



other non-natural legal persons trading for profit; or



trade associations representing organisations trading for profit.



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


which this section applies.



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.



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


defamation in relation to a statement concerning that function.”

Clause 4


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



the defendant reasonably believed that publishing the statement


complained of was in the public interest.”


Page 2, line 35, at end insert—



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.”


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


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.”


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



Clause 5


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


subsection (6A),”


Page 4, line 4, at end insert—





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.”


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”


Page 4, line 10, at end insert—



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


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



Clause 7


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

Clause 13


Page 9, line 14, at end insert “, or



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


defamatory statement to stop distributing, selling or exhibiting


material containing the statement.



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


as in section 1 of the Defamation Act 1996.”

After Clause 17


Insert the following new Schedule—




Recognition Commission



This Schedule provides the method by which the Recognition


Commission may be constituted for the purposes of this Act.



Appointments to membership of the Recognition Commission will be


made by the Lord Chief Justice.



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


and is—



a present or former Civil Service Commissioner;



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


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



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.





The Recognition Commission must consider whether an Independent


Regulatory Board body has—



sufficient guarantees of independence, including suitable


independent, fair and transparent procedures for appointments


and funding,



suitable functions, powers, personnel and resources to ensure


that it can fulfil its principal objectives effectively,



an appropriate standards code,



an arbitration service able to deal with defamation and related


civil claims, effective processes for upholding standards,



an efficient procedure for handling complaints, and



is open to all news publishers.



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.



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.



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


Recognition Commission must revoke the body’s certification.



The Recognition Commission shall not be involved in the regulation of


any subscriber to an Independent Regulatory Board.”


Insert the following new Schedule—




Specialist Arbitration Service



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





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).



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


Arbitration Act 1996.



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


with them where not necessary.



The process must include provision for frivolous or vexatious claims to


be struck out at an early stage.”


© Parliamentary copyright
Revised 26 February 2013