Defamation Bill (HL Bill 84)

A

BILL

[AS AMENDED ON REPORT]

TO

Amend the law of defamation.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Requirement of serious harm

1 Serious harm

A statement is not defamatory unless its publication has caused or is likely to
cause serious harm to the reputation of the claimant.

5Arbitration service

2 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 1 makes provision relating to the Defamation Recognition
10Commission.

(3) The Defamation Recognition Commission shall certify bodies as Independent
Regulatory Boards in accordance with the criteria in Schedule 1.

(4) An Independent Regulatory Board shall provide a recognised arbitration
service as set out in Schedule 2.

(5) 15A 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.

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(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
5service.

(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;

(b) 10a defendant refused to use or join a recognised arbitration service;

and the court shall also take into account whether a defendant first sought
advice from a recognised Independent Regulatory Board before publication.”

Non-natural persons

3 Non-natural persons

(1) 15This 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
20which 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
25defamation in relation to a statement concerning that function.

Defences

4 Truth

(1) It is a defence to an action for defamation for the defendant to show that the
imputation conveyed by the statement complained of is substantially true.

(2) 30Subsection (3) applies in an action for defamation if the statement complained
of conveys two or more distinct imputations.

(3) If one or more of the imputations is not shown to be substantially true, the
defence under this section does not fail if, having regard to the imputations
which are shown to be substantially true, the imputations which are not shown
35to be substantially true do not seriously harm the claimant’s reputation.

(4) The common law defence of justification is abolished and, accordingly, section
5 of the Defamation Act 1952 (justification) is repealed.

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5 Honest opinion

(1) It is a defence to an action for defamation for the defendant to show that the
following conditions are met.

(2) The first condition is that the statement complained of was a statement of
5opinion.

(3) The second condition is that the statement complained of indicated, whether in
general or specific terms, the basis of the opinion.

(4) The third condition is that an honest person could have held the opinion on the
basis of—

(a) 10any fact which existed at the time the statement complained of was
published;

(b) anything asserted to be a fact in a privileged statement published
before the statement complained of.

(5) The defence is defeated if the claimant shows that the defendant did not hold
15the opinion.

(6) Subsection (5) does not apply in a case where the statement complained of was
published by the defendant but made by another person (“the author”); and in
such a case the defence is defeated if the claimant shows that the defendant
knew or ought to have known that the author did not hold the opinion.

(7) 20For the purposes of subsection (4)(b) a statement is a “privileged statement” if
the person responsible for its publication would have one or more of the
following defences if an action for defamation were brought in respect of it—

(a) a defence under section 6 (publication on matter of public interest);

(b) a defence under section 8 (peer-reviewed statement in scientific or
25academic journal);

(c) a defence under section 14 of the Defamation Act 1996 (reports of court
proceedings protected by absolute privilege);

(d) a defence under section 15 of that Act (other reports protected by
qualified privilege).

(8) 30The common law defence of fair comment is abolished and, accordingly,
section 6 of the Defamation Act 1952 (fair comment) is repealed.

6 Publication on matter of public interest

(1) It is a defence to an action for defamation for the defendant to show that—

(a) the statement complained of was, or formed part of, a statement on a
35matter of public interest; and

(b) the defendant reasonably believed that publishing the statement
complained of was in the public interest.

(2) Subject to subsections (3) and (4), in determining whether the defendant has
shown the matters mentioned in subsection (1), the court must have regard to
40all the circumstances of the case.

(3) 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

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of the defendant to take steps to verify the truth of the imputation conveyed by
it.

(4) In determining whether it was reasonable for the defendant to believe that
publishing the statement complained of was in the public interest, the court
5must make such allowance for editorial judgement as it considers appropriate.

(5) For the avoidance of doubt, the defence under this section may be relied upon
irrespective of whether the statement complained of is a statement of fact or a
statement of opinion.

(6) The common law defence known as the Reynolds defence is abolished.

7 10Operators of websites

(1) This section applies where an action for defamation is brought against the
operator of a website in respect of a statement posted on the website.

(2) It is a defence for the operator to show that it was not the operator who posted
the statement on the website.

(3) 15The defence is defeated if the claimant shows that—

(a) it was not possible for the claimant to identify the person who posted
the statement,

(b) the claimant gave the operator a notice of complaint in relation to the
statement, and

(c) 20the operator failed to respond to the notice of complaint in accordance
with any provision contained in regulations.

(4) For the purposes of subsection (3)(a), it is possible for a claimant to “identify”
a person only if the claimant has sufficient information to bring proceedings
against the person.

(5) 25Regulations may—

(a) make provision as to the action required to be taken by an operator of
a website in response to a notice of complaint (which may in particular
include action relating to the identity or contact details of the person
who posted the statement and action relating to its removal);

(b) 30make provision specifying a time limit for the taking of any such action;

(c) make provision conferring on the court a discretion to treat action taken
after the expiry of a time limit as having been taken before the expiry;

(d) make any other provision for the purposes of this section.

(6) Subject to any provision made by virtue of subsection (7), a notice of complaint
35is a notice which—

(a) specifies the complainant’s name,

(b) sets out the statement concerned and explains why it is defamatory of
the complainant,

(c) specifies where on the website the statement was posted, and

(d) 40contains such other information as may be specified in regulations.

(7) 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.

(8) Regulations under this section—

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(a) may make different provision for different circumstances;

(b) are to be made by statutory instrument.

(9) A statutory instrument containing regulations under this section may not be
made unless a draft of the instrument has been laid before, and approved by a
5resolution of, each House of Parliament.

(10) In this section “regulations” means regulations made by the Secretary of State.

(11) 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.

(12) 10The defence under this section is not defeated by reason only of the fact that the
operator of the website moderates the statements posted on it by others.

8 Peer-reviewed statement in scientific or academic journal etc

(1) The publication of a statement in a scientific or academic journal (whether
published in electronic form or otherwise) is privileged if the following
15conditions are met.

(2) The first condition is that the statement relates to a scientific or academic
matter.

(3) The second condition is that before the statement was published in the journal
an independent review of the statement’s scientific or academic merit was
20carried out by—

(a) the editor of the journal, and

(b) one or more persons with expertise in the scientific or academic matter
concerned.

(4) Where the publication of a statement in a scientific or academic journal is
25privileged by virtue of subsection (1), the publication in the same journal of any
assessment of the statement’s scientific or academic merit is also privileged if—

(a) the assessment was written by one or more of the persons who carried
out the independent review of the statement; and

(b) the assessment was written in the course of that review.

(5) 30Where the publication of a statement or assessment is privileged by virtue of
this section, the publication of a fair and accurate copy of, extract from or
summary of the statement or assessment is also privileged.

(6) A publication is not privileged by virtue of this section if it is shown to be made
with malice.

(7) 35Nothing in this section is to be construed—

(a) as protecting the publication of matter the publication of which is
prohibited by law;

(b) as limiting any privilege subsisting apart from this section.

(8) The reference in subsection (3)(a) to “the editor of the journal” is to be read, in
40the case of a journal with more than one editor, as a reference to the editor or
editors who were responsible for deciding to publish the statement concerned.

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9 Reports etc protected by privilege

(1) For subsection (3) of section 14 of the Defamation Act 1996 (reports of court
proceedings absolutely privileged) substitute—

(3) This section applies to—

(a) 5any court in the United Kingdom;

(b) any court established under the law of a country or territory
outside the United Kingdom;

(c) any international court or tribunal established by the Security
Council of the United Nations or by an international agreement;

10and in paragraphs (a) and (b) “court” includes any tribunal or body
exercising the judicial power of the State.

(2) In subsection (3) of section 15 of that Act (qualified privilege) for “public
concern” substitute “public interest”.

(3) Schedule 1 to that Act (qualified privilege) is amended as follows.

(4) 15For paragraphs 9 and 10 substitute—

9 (1) A fair and accurate copy of, extract from or summary of a notice or
other matter issued for the information of the public by or on behalf
of—

(a) a legislature or government anywhere in the world;

(b) 20an authority anywhere in the world performing
governmental functions;

(c) an international organisation or international conference.

(2) In this paragraph “governmental functions” includes police
functions.

10 25A fair and accurate copy of, extract from or summary of a document
made available by a court anywhere in the world, or by a judge or
officer of such a court.

(5) After paragraph 11 insert—

11A A fair and accurate report of proceedings at a press conference held
30anywhere in the world for the discussion of a matter of public
interest.

(6) In paragraph 12 (report of proceedings at public meetings)—

(a) in sub-paragraph (1) for “in a member State” substitute “anywhere in
the world”;

(b) 35in sub-paragraph (2) for “public concern” substitute “public interest”.

(7) In paragraph 13 (report of proceedings at meetings of public company)—

(a) in sub-paragraph (1), for “UK public company” substitute “listed
company”;

(b) for sub-paragraphs (2) to (5) substitute—

(2) 40A fair and accurate copy of, extract from or summary of any
document circulated to members of a listed company—

(a) by or with the authority of the board of directors of
the company,

(b) by the auditors of the company, or

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(c) by any member of the company in pursuance of a
right conferred by any statutory provision.

(3) A fair and accurate copy of, extract from or summary of any
document circulated to members of a listed company which
5relates to the appointment, resignation, retirement or
dismissal of directors of the company or its auditors.

(4) In this paragraph “listed company” has the same meaning as
in Part 12 of the Corporation Tax Act 2009 (see section 1005 of
that Act).

(8) 10In paragraph 14 (report of finding or decision of certain kinds of associations)
in the words before paragraph (a), for “in the United Kingdom or another
member State” substitute “anywhere in the world”.

(9) After paragraph 14 insert—

14A A fair and accurate—

(a) 15report of proceedings of a scientific or academic conference
held anywhere in the world, or

(b) copy of, extract from or summary of matter published by
such a conference.

(10) For paragraph 15 (report of statements etc by a person designated by the Lord
20Chancellor for the purposes of the paragraph) substitute—

15 (1) A fair and accurate report or summary of, copy of or extract from,
any adjudication, report, statement or notice issued by a body, officer
or other person designated for the purposes of this paragraph by
order of the Lord Chancellor.

(2) 25An order under this paragraph shall be made by statutory
instrument which shall be subject to annulment in pursuance of a
resolution of either House of Parliament.

(11) For paragraphs 16 and 17 (general provision) substitute—

16 In this Schedule—

  • 30“court” includes—

    (a)

    any tribunal or body established under the law of any
    country or territory exercising the judicial power of
    the State;

    (b)

    any international tribunal established by the Security
    35Council of the United Nations or by an international
    agreement;

    (c)

    any international tribunal deciding matters in dispute
    between States;

  • “international conference” means a conference attended by
    40representatives of two or more governments;

  • “international organisation” means an organisation of which
    two or more governments are members, and includes any
    committee or other subordinate body of such an
    organisation;

  • 45“legislature” includes a local legislature; and

  • “member State” includes any European dependent territory of
    a member State.

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Single publication rule

10 Single publication rule

(1) This section applies if a person—

(a) publishes a statement to the public (“the first publication”), and

(b) 5subsequently publishes (whether or not to the public) that statement or
a statement which is substantially the same.

(2) In subsection (1) “publication to the public” includes publication to a section of
the public.

(3) For the purposes of section 4A of the Limitation Act 1980 (time limit for actions
10for defamation etc) 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 the first publication.

(4) 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
15publication.

(5) In determining whether the manner of a subsequent publication is materially
different from the manner of the first publication, the matters to which the
court may have regard include (amongst other matters)—

(a) the level of prominence that a statement is given;

(b) 20the extent of the subsequent publication.

(6) Where this section applies—

(a) it does not affect the court’s discretion under section 32A of the
Limitation Act 1980 (discretionary exclusion of time limit for actions for
defamation etc), and

(b) 25the reference in subsection (1)(a) of that section to the operation of
section 4A of that Act is a reference to the operation of section 4A
together with this section.

Jurisdiction

11 Action against a person not domiciled in the UK or a Member State etc

(1) 30This section applies to an action for defamation against a person who is not
domiciled—

(a) in the United Kingdom;

(b) in another Member State; or

(c) in a state which is for the time being a contracting party to the Lugano
35Convention.

(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
40statement.

(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.

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(4) For the purposes of this section—

(a) a person is domiciled in the United Kingdom or in another Member
State if the person is domiciled there for the purposes of the Brussels
Regulation;

(b) 5a person is domiciled in a state which is a contracting party to the
Lugano Convention if the person is domiciled in the state for the
purposes of that Convention.

(5) In this section—

  • “the Brussels Regulation” means Council Regulation (EC) No 44/2001 of
    1022nd December 2000 on jurisdiction and the recognition and
    enforcement of judgments in civil and commercial matters, as amended
    from time to time and as applied by the Agreement made on 19th
    October 2005 between the European Community and the Kingdom of
    Denmark on jurisdiction and the recognition and enforcement of
    15judgments in civil and commercial matters (OJ No L299 16.11.2005 at p
    62);

  • “the Lugano Convention” means the Convention on jurisdiction and the
    recognition and enforcement of judgments in civil and commercial
    matters, between the European Community and the Republic of
    20Iceland, the Kingdom of Norway, the Swiss Confederation and the
    Kingdom of Denmark signed on behalf of the European Community on
    30th October 2007.

12 Action against a person who was not the author, editor etc

(1) A court does not have jurisdiction to hear and determine an action for
25defamation brought against a person who was not the author, editor or
publisher of the statement complained of unless the court is satisfied that it is
not reasonably practicable for an action to be brought against the author, editor
or publisher.

(2) In this section “author”, “editor” and “publisher” have the same meaning as in
30section 1 of the Defamation Act 1996.

Trial by jury

13 Trial to be without a jury unless the court orders otherwise

(1) In section 69(1) of the Senior Courts Act 1981 (certain actions in the Queen’s
Bench Division to be tried with a jury unless the trial requires prolonged
35examination of documents etc) in paragraph (b) omit “libel, slander,”.

(2) In section 66(3) of the County Courts Act 1984 (certain actions in the county
court to be tried with a jury unless the trial requires prolonged examination of
documents etc) in paragraph (b) omit “libel, slander,”.

Summary of court judgment

14 40Power of court to order a summary of its judgment to be published

(1) Where a court gives judgment for the claimant in an action for defamation the
court may order the defendant to publish a summary of the judgment.