2 Substance of the draft Bill|
Improving clarity of the law
19. One of our core principles revolves around making
it easier for the ordinary citizen to understand and use defamation
law. The current law has developed through many judicial decisions
of the courts over the years, which are scarcely accessible to
the lay person. Not only is the law complex, it lacks clarity
in some areas. As a consequence, the high degree of uncertainty
in the outcome of libel claims undoubtedly serves to increase
the risks and costs of proceedings, further contributing to the
chilling effect. In the evidence we received there was consensus
on the need for greater clarity in the law. However, there were
strong differences of opinion on the benefits of seeking to enshrine
existing common law in statute, often referred to as "codification",
as well as disagreement on what reforms are required and the extent
to which existing principles can be refined using this approach.
20. We heard strong representations from some quarters
that any change in the law would inevitably lead to more litigation
and less, rather than more, certainty as the new laws are tested
in their application in the courts. This argument can be advanced
against all new legislation. In our view, any period of uncertainty
as the new law takes effect does not outweigh the potential long
term gains of having many core aspects of defamation law established
in one place, readily accessible to all. Other cited advantages
of the common law are that the published body of public judgments
helps to provide greater certainty and also gives the courts the
flexibility to respond to new developments, such as technological
innovation. We have considered carefully the potential advantages
and disadvantages of codifying significant aspects of defamation
law, particularly in respect of the defences of truth, honest
opinion and reporting privilege. In general, we have come down
in favour of some codification, in line with our core principle
of improving accessibility.
In other areas we recognise that the common law continues
to have an important role to play. The Government should monitor
whether, in due course, the codification carried out by the Bill
is achieving its goal of improving accessibility and clarity of
21. The draft Bill seeks to codify the existing
law in some areas: the Secretary of State explained that "the
objective was to clarify the situation and put it in modern language
in statute without seeking to change the law."
But it is clear from the consultation document that in other areas
the intention is to codify with some elements of reform. We have
a general concern that the Government has not always been clear
when the intention is to replace the existing common law with
a codified statutory version and when the law is being reformed
as well as codified. As many witnesses pointed out, a lack of
clarity on this point could significantly increase uncertainty
and levels of litigation.
If the changes being introduced by the Bill are not to risk increasing
uncertainty, it is essential that the Government makes clear,
in a way that the courts can take into account, during the passage
of the Bill if not before, when it is seeking to make changes
of substance to the law and when it is simply codifying the existing
common law. We have sought to make this distinction clear in the
specific changes to the draft Bill that we propose in this chapter.
In future, we recommend that the Government always makes clear
at the date of publication whether the clauses of a draft Bill
are intended merely to codify the existing law, or to codify with
elements of reform. There should be no ambiguity over this important
Trial by jury
22. Under the law as it stands any party involved
in a defamation case may apply for trial by jury. This application
can only be refused by the court where the trial cannot "conveniently"
be conducted with a jury, for example if it requires lengthy examination
of documents or scientific investigation.
For ease of reference we describe these criteria as "the
convenience test". In recent years judges have increasingly
found the convenience test to be satisfied and then exercised
their discretion to order trial by judge alone. In the years 2008
and 2009, only eight out of the 21 defamation claims that reached
the High Court were decided by a jury.
The Government's draft Bill seeks to abolish the convenience test
and with it the current presumption in favour of jury trials.
This would bring defamation broadly into line with the vast majority
of civil cases. Under
the proposed change, rather than responding to any request by
either party, the judge would only order a trial by jury where
it was in the interests of justice to do so. The draft Bill provides
no guidance on what this might mean in practice.
23. The Government's consultations revealed "widespread
support" for the removal of the presumption in favour of
jury trial. The evidence
we received reflected this assessment. The few who favoured the
current law did so on the grounds that trial by jury was important
to maintaining public confidence in trials which often involve
figures in political or other authority, and that when assessing
damage to reputation and the determination of the ordinary meaning
of words, the view of a jury, as representing the general public,
was more appropriate than that of a judge.
The main arguments against trial by jury focus on the negative
impact that the possibility of jury trial often has on the chances
of resolving a claim early by the resolution of key issues by
the judge, which may either determine the case or lead to prompt
settlement. It is commonly not possible to apply the convenience
test fairly at an early stage, by which time very substantial
costs have often already been incurred. At present it falls to
a jury to determine key issues of fact, such as what defamatory
meaning the words bear and whether they are statements of fact
or opinion. Such issues are often critical to the outcome of the
case. Unless and until the mode of trial has been determined as
being by judge alone, judges can only make early rulings on these
issues where they are satisfied that any reasonable jury, properly
directed, would be in agreement. Delaying the resolution of these
issues often prolongs cases and substantially increases the costs.
The possibility of trial by jury may also be exploited by a party
for precisely that reason.
The increased costs associated with trial by jury have been estimated
at 20-30% and the whole process may take up to twice as long.
Another drawback of jury trials is that they do little to add
clarity to how the law is applied, as there is no reasoning given
to support decisions relating to meaning and the other defences.
In contrast, a decision by a judge is supported by a reasoned
judgment (that is subject to appeal) which sets out precisely
and publicly how the law has been interpreted and applied.
24. We recognise the force of the argument that certain
issues, such as what is and is not in the public interest, are
more appropriately determined by a jury of ordinary citizens.
But, on balance, we consider that any perceived benefits of a
judgment by a jury do not outweigh the enormous costs in terms
of time and money that this option entails and the precluding
effect these can have. Also, reasoned judgments often confer significant
benefit in terms of transparency and fairness. In our view, jury
trials are not only more expensive in themselves; their availability
can serve to work against early settlement. The reversal of the
presumption in favour of jury trials is essential to many of the
recommendations we make, particularly those relating to early
resolution. We conclude that the presumption in favour of jury
trials works against our core principles of reducing costs by
promoting early resolution and, to a lesser degree, of improving
clarity. We support the draft Bill's reversal of this presumption,
so that the vast majority of cases will be heard by a judge.
25. We do not share the minority view that jury trials
should be abolished altogether in defamation cases.
We accept that there may be exceptional circumstances in which
trial by jury is in the public interest. Opinions amongst our
witnesses on what these precise circumstances should be varied
but we found there was a general view that it may be appropriate
for cases involving the credibility of those in positions of special
power and authority in society to be tried by jury so as to retain
confidence in the administration of justice. This would be subject
to judges using their discretion to decide whether jury trial
is appropriate. We can, for example, see that in some cases there
would be very substantial benefits in having a reasoned judgment,
which a jury cannot give, and in other cases jury trial would
still be disproportionate. It would be undesirable to restrict
this discretion, but it should be possible to outline general
principles. We intend trial by jury to be exceptional. A libel
action brought by a serving judge is an obvious example where
a jury trial may well be appropriate. In accordance with our core
principle of improving accessibility by providing clarity on the
face of the Bill, we believe that the circumstances in which
a judge may order a trial by jury should be set out in the Bill,
with judicial discretion to be applied on a case-by-case basis.
These circumstances should generally be limited to cases involving
senior figures in public life and ordinarily only where their
public credibility is at stake.
Improving protection of freedom
26. Publishers repeatedly told us that the cost,
length and complexity of libel proceedings effectively requires
them to withdraw or modify their work when faced with the potentially
ruinous consequences of ignoring a threatening letter from a solicitor,
irrespective of its legal merits. This applies not only to individuals
who publish at home on a blog or newsletter without access to
legal advice and the protection of an employer, but also to scientists,
consumer organisations, non-governmental organisations, journalists,
booksellers and many other types of professional publisher. As
we indicate in Chapter 1, we are persuaded that free speech is
being threatened, or "chilled", to an unacceptable degree.
A situation has arisen where many publishers feel cowed every
time that someone disputes what they have said or wish to say.
The boundaries of free speech should not be dictated by lawyers
and their clients relying on bullying tactics to intimidate publishers
into silence. We propose in Chapter 3 an overarching solution
that reduces cost and complexity through a range of procedural
and substantive changes to the law. In this section, we focus
on the discrete issue of publishers facing legal threats in relation
to trivial, insubstantial or irreverent remarks that should not
take up the time and resources of the courts and publishers.
27. Under the existing common law, the courts have
power to throw out any claim that fails to meet a "threshold
of seriousness", including where no "real and substantial"
wrongdoing can be demonstrated.
In practice, this represents a surprisingly low hurdle for would-be
claimants to overcome since these tests have been interpreted
as being met whenever more than minimal harm is caused to the
The draft Bill would replace the existing common law tests
with a new statutory provision requiring the claimant to prove
"substantial harm" to their reputation as part of bringing
a claim. The lack of clarity in the application of this test was
apparent from the evidence.
The Secretary of State for Justice, the Rt Hon Kenneth Clarke
MP, suggested during oral evidence that it would raise the bar
by making it harder for claimants to pursue trivial claims.
This was subsequently contradicted by the Minister of State, the
Rt Hon Lord McNally, who wrote to us stating that the new test
is intended to reflect the existing law, merely giving it new
prominence rather than a stricter meaning that makes it harder
to bring a libel claim.
This is not likely to help promote the free speech of publishers.
We believe it important that the draft Bill is strengthened; it
must ensure that wealthy individuals and organisations cannot
stifle comment and debate that has no significant impact on their
reputation. The public interest requires our law and its procedures
to prevent trivial claims from being started and, where that happens,
ensure that they are stopped.
28. One proposal made by a number of witnesses is
to require claims to be "serious" or "serious and
substantial" in order to proceed.
We consider that a threshold test that focuses on the seriousness
of the allegation would raise the bar in a meaningful way and
give greater confidence to publishers that statements which do
not cause significant harm, including jokes, parody, and irreverent
criticism, do not put them at risk of losing a libel claim. The
threshold test should relate to harm to reputation and not to
feelings, although the latter is an important aspect of damages
if an action proceeds. Due allowance should be made for such matters
as the nature of the charge, prompt apologies, the width of publication
and any other relevant background. We accept that there may be
a period of litigation while the courts spell out the precise
meaning of "serious and substantial" as part of the
threshold test, but over time this will create a better balance
between free speech and reputation. Therefore, we recommend
replacing the draft Bill's test of "substantial harm"
to reputation with a stricter test, which would have the effect
of requiring "serious and substantial harm" to be established.
29. A new harm test will only better protect publishers
if the courts ensure that trivial claims are dismissed promptly
before unnecessary time and money is expended. The Ministry of
Justice plans to make sure that a judge determines whether the
harm test is satisfied at a very early stage in legal proceedings.
It has stated that judges will be able to use their existing powers
to dismiss any claim that fails to meet the required threshold
of seriousness. This is essential: the threshold test should
be decided as part of the proposed early resolution procedure
and any claim that fails to meet this test should be struck out.
Some witnesses expressed legitimate reservations that determining
the degree of harm at an early stage could lead to costs being
"front-loaded" at an early stage of the proceedings.
We do not pretend that early resolution comes without the risk
of increasing costs at the start of a claim, but the potential
advantage of sifting out weak cases will be a major advantage
to both sides: the winning party will not be dragged through lengthy
proceedings where that can be avoided and the losing party will
have their case dismissed before fruitlessly investing even more
of their time and resources into it.
30. Further, the context in which a statement is
made must be considered carefully when deciding whether the harm
test is satisfied. For instance, the sting of a defamatory allegation
is likely to be lessened or removed altogether where the publisher
makes a rapid correction or apology. Equally, there may be less
chance of serious harm where a notice is attached to material
on the internet indicating that it has been challenged as libellous.
The law must encourage attempts by publishers to correct false
information in support of responsible free speech and the protection
of reputation; this should include recognising that prompt action
can undo the risk of harm. As we also mention in our section on
the internet, the
court must additionally take into account the nature of the setting
in which the statement was made as part of considering its full
context. The Ministry of Justice should work with the judiciary
to ensure that this approach is implemented in the courts in relation
to the draft Bill's new test.
Responsible journalism in the
31. It is vitally important to the health of society
that issues of public interest can be discussed and debated. One
of the most significant recent developments in defamation law
was the creation of a specific defence to protect statements that
are published responsibly in the public interest.
The courts have identified ten non-exhaustive guidelines for use
in deciding whether a publication was made responsibly as part
of what is commonly known as the Reynolds defence.
32. Our inquiry has revealed universal support for
a dedicated public interest defence, particularly to protect investigative
journalism that legitimately goes beyond the boundaries of what
can be proved to be true. In this respect, the public interest
(Reynolds) defence has been relied upon to protect publications
relating to the funding of terrorism, involvement in international
crime, police corruption, drug taking in sport, and the use of
child labour, among other issues.
33. There is, however, debate about whether the current
defence is operating satisfactorily.
The most sustained criticisms are that it is unpredictable, inflexible,
complex and costly.
More specifically, we have heard concerns that the ten non exhaustive
responsibility guidelines have sometimes been treated as a rigid
checklist and are not always appropriate to publishers who fall
outside the traditional media, including non-governmental organisations,
notwithstanding recent efforts by the courts to put this right.
34. The Government's draft Bill adopts a broadly
similar approach to Lord Lester's Bill by placing the existing
defence on a statutory footing, although there are significant
differences in the detailed wording. In doing so it seeks to improve
the defence by modifying some of the factors that are used to
determine responsibility. The clause seeks to make clear that
these factors are treated as an illustrative list of issues to
be taken into account rather than a rigid series of tests.
The aim is to make the defence clearer and simpler for publishers
to rely upon.
35. There are two general arguments of principle
that we considered during our inquiry in relation to the public
interest defence. First, there were calls for a more radical overhaul
of the existing defence with a view to protecting any statement
on a matter of public interest provided the author was not acting
recklessly or maliciously.
This would dramatically widen the scope of the defence and bring
it closer to the United States model. On balance, we are in agreement
with those witnesses who felt that this approach is inappropriate.
It would offer insufficient protection to people whose reputation
is harmed by untruths and overly focus on the mind of the publisher
rather than the objective responsibility of the publication.
We accept that publishers often face difficult editorial decisions
concerning what to publish, and that on some aspects of a publication
their reasonable judgments should be given due weight. A better
approach, in our view, is to require the following: when deciding
whether publication was responsible, the court should have regard
to any reasonable editorial judgment of the publisher on the tone
and timing of the publication.
This is consistent with the approach adopted elsewhere in Europe
and was favoured by Lord Lester, who told us that the Bill "should
allow sufficient room for editorial discretion, so that the courts
do not sit in judgment on matters of editorial judgment beyond
their proper province."
This should provide some comfort to publishers who face pressured
decisions about publication and, in so doing, we hope that it
will provide greater protection to free speech, whilst not risking
the irresponsible undermining of an individual's reputation.
36. Second, a wide range of witnesses called for
declarations of falsity to be made available as a remedy in any
case where the publisher relies on what is currently the Reynolds
defence. The rationale
is that a person may not be able to win a libel claim in relation
to an untrue and damaging allegation if it was published responsibly
in the public interest. A declaration of falsity would give that
person the ability to vindicate their reputation without removing
the public interest defence from the publisher. The aim of using
declarations of falsity to protect the truth and to vindicate
a person's reputation is undeniably attractive. Ultimately, however,
we do not accept that they should be made available. It is not
the function of the courts to determine categorically that something
is false; such a remedy could lead to a declaration of falsity
being made in relation to a statement which is later proved to
be true. There may also be legitimate reasons for a publisher
being unable to prove the truth of an allegation. For instance,
the publication may be based on information provided by a confidential
source who cannot openly verify its truth. A preferable approach,
in our view, is as follows: the judge who upholds a public
interest defence should make it clear when the truth of the allegation
is not also proven. It may be appropriate, depending on the facts
of the case, for the judge to order a summary of his or her judgment
to be published, to make this clear. This would help to protect
the reputation of the claimant, but without the practical and
legal complications associated with declarations of falsity. The
Ministry of Justice should work with the Lord Chief Justice and
senior members of the judiciary to implement this reform.
37. We have already set out our views on codifying
the law. On balance,
we support the broad approach that is taken by the Government
to the public interest defence, although in some detailed respects
we prefer the approach of Lord Lester's Bill.
Reforming this vitally important public interest defence within
the draft Bill has the advantage of making it more accessible
to publishers and the ordinary citizen.
It also provides an opportunity to improve the existing defence
by making it clearer and better able to protect free speech, including
by making it apply more effectively outside the mainstream media
to the growing number of citizen publishers. To achieve this aim,
we recommend various detailed amendments to the draft Bill's public
interest defence as outlined at paragraphs 63-66 below.
Protecting the truth
38. In defining one of our Report's core principles
as the protection of freedom of speech we emphasised that the
law should encourage this right to be exercised responsibly. Having
respect for the truth is fundamental to what we mean by this.
From the perspective of free speech, any person who publicly states
a matter that is substantially true should never be liable to
pay damages for defamation, irrespective of the harm or embarrassment
that may be caused.
The courts have for many years recognised the common law defence
of "justification" which protects publications that
are substantially true. Where multiple allegations are made, the
1952 Defamation Act ensures that a claimant will fail if, having
regard to those allegations proved to be substantially true, the
claimant's reputation is not materially injured by those allegations
that are not. This
is a fundamental defence in this area of law. The draft Bill would
replace the current defence with a statutory equivalent which
goes under the more accurate name of "truth". We welcome
this proposal, which will help to make the law clearer and more
accessible. However, we recommend that the name of the "truth"
defence be changed to "substantial truth" which
better describes the nature of the test that is applied. Our attention
was drawn to a proposal made by Lord Lester which provides that
in relation to a single allegation, a claimant will still fail
if what remains unproved does not materially injure the claimant's
reputation with regard to what is proved. This may well already
be covered by the word "substantially" in clause 3(1)
of the Bill but this opportunity should be taken to remove any
uncertainty. We recommend that the Government includes Lord
Lester's provision as to what is required to prove the truth of
a single allegation.
39. While there is great value in standing up for
the truth and holding the powerful to account, the public interest
is not served by irresponsible publishers failing to correct statements
that are demonstrably inaccurate and untrue. Damages awards may
provide some compensation, but they may be little comfort to someone
whose friends, relatives and business associates have been exposed
to untrue allegations about them, which are not publicly corrected.
Many witnesses remarked that most people who consider bringing
a claim for defamation are far more concerned about setting the
record straight than recovering damages.
40. In very limited circumstances under the statutory
summary relief procedure,
the court has the power to order a summary of its judgment to
be published in terms agreed by the parties or determined by the
court. We considered
whether this power should be extended to all defamation proceedings.
Where a publisher has got something seriously wrong, the public
interest and the interests of the victim require that a suitable
correction is made. We share the dissatisfaction expressed by
many about the practice of some newspapers of hiding away corrections
in materially less prominent parts of the paper. We do not accept
the protestations of newspaper editors that this does not go on.
Mr Dacre told us that it is "one of the great myths of our
time that newspapers somehow bury these things at the back of
We point to the recent example when the Daily Mail, along with
seven other newspapers, had to apologise and pay damages in respect
of wrong allegations in highly prominent coverageon the
front and inside pagesof the questioning of a murder suspect.
As a result, the Daily Mail reported this apology in 83 words
on the inside middle of page twohardly proportionate on
any objective view.
In principle, we are attracted to the idea of the retraction or
correction having a degree of prominence that is proportionate
to the original article and would support efforts to make this
standard practice. We recommend that a court presiding over
a defamation case should be given the power to order the defendant
to publish, with proportionate prominence, a reasonable summary
of its judgment. This is in line with the Press Complaints
Commission (PCC) Editors' Code of Practice that already requires
a newspaper to publish the outcome of an action in which it may
be involved. There
is scope for the PCC to monitor its members and to assist the
court in enforcing compliance with this proposal.
41. Several witnesses also raised the issue of whether
the court should have the power to order the publication of an
apology. Not surprisingly, media representatives generally were
hostile to the prospect of mandatory apologies, believing that
this was an infringement of editorial control and, potentially,
the ECHR right to freedom of speech.
They agreed with most witnesses that voluntary apologies
ought substantially to reduce damages awards whenever made promptly
and fully. We see no value in forcing a person to make an apology
that is neither meaningful nor sincere.
Freedom to express opinions
42. It has been recognised for many years that striking
a fair balance between free speech and reputation requires the
law of defamation to protect anyone who publishes their honestly
held opinion. Some expressions of opinion, most obviously value
judgments, may by their nature be incapable of being proved to
be right or wrong. The important public interest in issues being
discussed and debated would be seriously damaged if proving the
truth of a statement was the only defence available to a libel
claim. Yet the law should not allow critics to ride roughshod
over the reputation of others simply by dressing up any kind of
attack as an expression of opinion. There has to be a careful
consideration of what constitutes an opinion and the circumstances
in which a defamatory opinion ought to be legally protected.
43. The Supreme Court recently carried out this challenging
exercise by setting out the circumstances in which the existing
comment defence is available, including by changing its name to
A number of witnesses suggested that the defence should not be
further reformed given this important development.
We note, however, that the most senior judge in the Supreme Court,
Lord Phillips of Worth Matravers, stated that the defence should
be reviewed either by Parliament or the Law Commission.
He felt that it was inappropriate for the Supreme Court to carry
out a fundamental reshaping of the underlying policy and scope
of the defence beyond the limited issues of law arising on the
facts of that case. In line with Lord Phillips' request for the
defence to be examined, and further to our earlier conclusion
on the merits of codification, we support the Government's
proposal to place the defence of honest opinion on a statutory
footing as part of the draft Bill. We are not, however, persuaded
that the draft Bill makes the law clearer, simpler or fairer to
the ordinary person than it is at present. As a result, we recommend
a series of amendments to the draft Bill. These are outlined
in paragraph 69.
Absolute and qualified privilege
44. A person who publishes a defamatory statement
may be able to rely on the defences of "absolute" and
"qualified" privilege in a wide variety of circumstances.
The defence of absolute privilege, as its name suggests, protects
the publisher whatever their motive for publication. The defence
of qualified privilege is defeated if the publisher was malicious
in the sense that the dominant motive for publication was improper.
Examples of absolute privilege include testimony by a witness
in court and contemporaneous reports of proceedings in open court.
Although often classified as "Parliamentary privilege",
Members of Parliament participating in Parliamentary proceedings
are similarly protected. This category of privilege reflects a
particularly strong public interest in there being no inhibition
on being able to speak or write freely even if there is an adverse
impact on the other person's reputation. The defence is central
to the proper functioning of an orderly and democratic society.
45. Qualified privilege can protect private communications
that contain defamatory material where there is a shared duty
and interest between the publisher and the recipient. This defence
is well established at common law. We agree that this aspect of
qualified privilege is best left to the common law to develop.
However, qualified privilege also applies by statute to a wide
range of reports of public proceedings and notices, provided the
relevant material is on a matter of public concern and for the
46. The draft Bill expands the defences of absolute
and qualified privilege in a number of different ways, primarily
to protect publishers who report on a wider range of international
legislatures, courts, tribunals, companies, and other organisations
than are covered by privilege at present.
We strongly support this proposal, which represents helpful additional
protection of freedom of expression. There are, however, two areas
in which we believe that the Bill should go further in order better
to protect scientific debate and the democratic process.
ACADEMIC AND SCIENTIFIC DEBATE
47. It is vital that members of the scientific and
academic communities can engage in vigorous and uninhibited debate
provided they do so responsibly and honestly, since their work
helps to shape every aspect of the world in which we live. This
includes medical research into matters of the greatest public
importance. Historic examples include the safety of smoking or
the risks associated with a drug such as Thalidomide, where the
truth emerged over time thanks to persistent and impartial research.
A process of critical review is essential through which the work
of one person, or group, is published and subsequently challenged
by others. It is unavoidable that these efforts to uncover the
truth and expand the limits of our understanding sometimes turn
out to be wrong or to clash with the commercial and personal interests
of other individuals and corporate organisations within society.
For example, publishing research that reveals a particular product
as unsafe or inefficient could seriously damage the business of
its manufacturer, but may save lives. There is convincing evidence
that defamation law is being used to silence responsible members
of the medical and scientific community in order to protect products
and profits. In
particular, we were informed that 10% of all libel claims involve
science and medicine, and that 80% of GPs feel inhibited in discussing
medical treatments publicly due to fear of facing a claim.
At a cultural and social level, it is also important for historians,
geographers, political scientists and other academics similarly
to be able to research and publish without undue fear of litigation.
We took evidence from various individuals who have first-hand
experience of the lengthy and costly trauma of being dragged through
the courts. For
most scientists and academics defending libel proceedings is unthinkable,
with the effect that important issues are either not being discussed
publicly or at all.
48. The draft Bill goes some way towards tackling
this problem by extending qualified privilege to include fair
and accurate reports of what is said at a "scientific or
We welcome this development, provided the conference is reputable.
However, our inquiry revealed unanimous support for extending
protection of qualified privilege to peer-reviewed articles published
in scientific or academic journals, as recommended in 1975 by
the Faulks Committee when the law of defamation was last reviewed
comprehensively. Peer-reviewed articles are arguably the main
platform for scientific and academic debate, and more reliable
in their quality than conferences.
Such articles may, in principle, be protected by other types of
legal privilege, including qualified privilege and the so-called
Reynolds defence, but the Reynolds defence in particular is often
time consuming and costly to make out.
In our view a proper peer review process should lead to the publication
being treated as responsible and should have special protection
in the public interest without the burden of having to prove "responsibility"
in every individual case. Scientists and academics must not be
left in fear of being sued simply for doing their job. We recommend
that a provision is added to the draft Bill extending qualified
privilege to peer-reviewed articles in scientific or academic
49. This raises the question of whether the terms
"scientific or academic conference" and "peer-reviewed
article" should be defined within the Bill in order to provide
clear and appropriate boundaries for these new categories of qualified
privilege. The Government has stated that it would be difficult
to provide a clear and comprehensive definition of "scientific
and academic conference" in statute. We accept that this
is correct in principle and note that no witness has suggested
a suitable form of words. The same applies to the definition of
"peer-review". In particular, while the basic elements
of peer-review are well established, the precise nature and extent
of the process varies between different publications and subjects.
Representatives of leading journals did not support attempts to
include a precise statutory definition.
We accept that leaving it up to the courts to interpret the meaning
of these terms would provide greater flexibility for the future,
but it would also lead to uncertainty and create greater opportunity
for litigation and abuse.
We note that the Committee chaired by Mr Justice Faulks proposed
a registration system, such that conference reports and peer-reviewed
articles appearing in scientific or academic journals would only
receive qualified privilege where the organiser or publisher is
listed in an official register. We are not convinced by the practicality
of this approach due to the large and expanding number of journals
in existence (now numbering in their tens of thousands), together
with the resources required to determine which journals should
receive such protection, and the risk that legitimate publications
may be omitted from the list by ignorance or oversight. We are
also concerned about the Government being called upon to determine
which scientific or academic conferences and journals are more
worthy of protection than others. It is preferable for the court
to determine in any particular case whether the article or report
is protected. In line with our core principle of accessibility
and clarity, we recommend that the Government prepares guidance
on the scope of this new type of statutory qualified privilege
in consultation with the judiciary and other interested parties.
Our aim is to enhance the protection of free speech by giving
certainty to publishers who report on conferences and authors
who contribute peer-reviewed articles to journals, but without
repealing any part of the existing law.
PROTECTING THE DEMOCRATIC PROCESS
50. The strength of our Parliamentary democracy depends
on Members of Parliament being able to speak freely while fulfilling
their role in Parliament, without being in fear of legal proceedings.
The Bill of Rights Act 1689 has for many years provided Members
with important protection in relation to anything said during
Parliamentary proceedings. This is known as Parliamentary privilege
and it means, for example, that a defamation claim cannot be based
on statements made by Members during a debate. The precise scope
of Parliamentary privilege is complex, unclear and in some respects
these reasons, the Government has committed to a process of reviewing
Parliamentary privilege leading to the publication of a draft
Bill in due course.
We accept that this is a sensible course of action given the
complexities that arise, but we are concerned by how much time
may elapse before such a Bill reaches the statute book. Recent
events have highlighted the need for more immediate and decisive
action in relation to two issues: the reporting of Parliamentary
proceedings by the press; and the protection offered to communications
between constituents and their MP. Both require urgent legislative
solutions that can subsequently be incorporated within a Privilege
Bill if and when enacted.
51. First, it is of fundamental importance that proceedings
in Parliament can be reported upon freely by the press to ensure
that people can discover what is being said and done by elected
representatives on their behalf. Our faith in this essential aspect
of Parliamentary democracy and press freedom was shaken recently
when the Guardian newspaper reported that it had been gagged from
reporting a Parliamentary question submitted by Paul Farrelly
MP. The question related to the oil company, Trafigura, which
had obtained a court ordered injunction prohibiting disclosure
of a confidential report concerning its activities in Ivory Coast.
The court order also included a prohibition on the disclosure
of Trafigura's identity and the existence of the injunction itself,
making it what is known commonly as a "super-injunction".
There are provisions in the common law and the Parliamentary Papers
Act 1840 aimed at ensuring that the press can report on proceedings
in Parliament, but these have long been considered outdated and
in need of reform.
In this respect, the lawyers of Trafigura and the Guardian
both agreed that reporting on Paul Farrelly's question would,
as an unintended effect, have breached the super-injunction and
therefore may have placed the newspaper in contempt of court.
This case, and super-injunctions more generally, were recently
reviewed by a committee established by the Master of the Rolls,
Lord Neuberger, which concluded in its report that "no super-injunction,
or any other court order, could conceivably restrict or prohibit
Parliamentary debate or proceedings".
We agree but equally note the report's observation that the
press does not under the current law have a clear and unfettered
right to report on what is said in Parliament where such reporting
appears to breach the terms of a court order.
We find this uncertainty in the law unacceptable and in need
of immediate reform. Lord Lester's Bill would have replaced the
1840 Act with a modern equivalent that is fit for purpose and
which could, in our view, form a useful template.
We recommend adding a provision to the Bill which provides the
press with a clear and unfettered right to report on what is said
in Parliament and with the protection of absolute privilege for
any such report which is fair and accurate.
52. Secondly, one of the main functions of Members
of Parliament is to provide advice and representation to their
constituents, which may lead to highly sensitive communications
taking place between them. Less attention has traditionally been
focused on the legal protection offered to these communications.
In this context Lord Neuberger's report stated that they may be
covered by parliamentary privilege "to a degree, and in some
In particular, a defamatory communication would only be protected
from court proceedings where it is closely connected to Parliamentary
proceedings, such as forming part of a Member's preparation to
speak in a debate or table a specific question. Where, however,
the communication has no link to Parliamentary proceedings then
it would not be protected by parliamentary privilege. Therefore,
it could potentially lead to a defamation claim, unless an alternative
defence of absolute or qualified privilege were available. John
Hemming MP has drawn Parliament's attention to recent examples
of constituents being told that court orders prevented them from
discussing their concerns with him.
In our experience, some constituents do feel inhibited in what
they can discuss with their MP following threatening letters from
lawyers. Although we consider that qualified privilege at common
law would attach to such communications, in our view the democratic
process is unacceptably hindered by a lack of certainty and awareness
among constituents about their right to engage in open and frank
discussions with their Westminster representative. We are aware
of the concern that extending absolute privilege to cover all
communications between constituents and their MPs might encourage
malicious complaints to MPs which damage the reputation of third
parties. This is
a potential problem that requires careful thought, but our view
is that such communication would, and should, only receive the
protection of qualified privilege. However we believe that the
protection is of such importance that it should be made clear
by statute. We recommend that the Government adds a provision
in the Bill protecting all forms of communication between constituents
and their MP (acting in his or her official capacity as an MP)
by qualified privilege.
REPORTING COURT PROCEEDINGS
53. As we have already indicated, the press and other
publishers are protected by absolute privilege when reporting
contemporaneously on what has been said during court proceedings,
provided the report is fair and accurate.
It has been drawn to our attention that newspapers frequently
cover the opening stage of criminal trials during which the prosecution's
case is outlined in detail. However, there is often little or
no coverage of the defendant's case, with the consequence that
the public may receive an unbalanced picture of the trial and
the defendant. It was encouraging to discover during our inquiry
that at least some newspaper editors view this state of affairs
as being problematic.
We heard that discussions are ongoing with the judiciary to help
ensure that the media is kept informed about key stages of a criminal
trial, including the defence. We encourage the press to be more
proactive in making sure that their coverage of criminal trials
is balanced. The MoJ should monitor the progress of ongoing discussions
with the judiciary and provide support to the extent that is necessary.
54. There have been growing concerns in recent years
that defamation law in this country has come to be more protective
of reputation than elsewhere in the world to such an extent that
London has become the preferred location for defamation actions
involving foreign parties with only a tenuous link to this jurisdiction.
Those of most concern arise where both the claimant and defendant
come from outside the EU. Some say that London has developed a
reputation as the libel capital of the world and that the judgments
of its courts are having a chilling effect on freedom of speech
in other parts of the world. Apparently in response to this, legislation
was recently introduced in the United States specifically to prevent
foreign libel judgments being enforceable there.
The draft Bill seeks to prevent claims against defendants who
are not domiciled here or in another EU member state without a
strong link existing to the jurisdiction of England and Wales.
It prevents a court from hearing such a case unless it is satisfied
that this jurisdiction is the "most appropriate" place
for a defamation action to be brought.
55. In the evidence we received, there was a divergence
of views on the extent to which libel tourism remains a problem.
We found that whilst there have been recent examples of foreigners
attempting to use the London courts to pursue libel claims against
foreign defendants with little connection to harm suffered in
the UK, in reality
such cases are extremely rare: no similar cases have proceeded
to trial in the last two years. The existing law allows the courts
quite wide discretion to refuse to hear cases where another jurisdiction
is more appropriate.
But some organisations argued that the small number of cases going
before the courts does not accurately reflect the scale of the
problem and the extent to which free speech is being curtailed
by the threat of legal action in London. For instance, we received
convincing evidence that articles in journals published internationally
had to be edited or withdrawn purely because of the risk of legal
action in this country.
This is harmful to this country's reputation as a place that values
and protects free speech.
56. We believe that the extent of libel tourism
has been exaggerated in some quarters but, in line with our core
principle of protecting freedom of speech, we believe that the
courts would benefit from more robust powers to prevent unwarranted
legal action in this country. This would also help reduce any
international chilling effect. Foreign parties should not be allowed
use of the courts in this country to settle disputes where the
real damage is sustained elsewhere or where another jurisdiction
is more appropriate. We therefore support the thrust of the Government's
proposals but require some modifications, particularly to clarify
that residents of England and Wales are not prevented from taking
action here against an overseas defendant for damage caused abroad
where the current law permits it.
We note that the draft Bill does not give any further indication
of the factors the court should bear in mind when determining
the most appropriate place for the case to be heard. In line with
our core principle of improving accessibility through clarity,
we recommend that the Government should provide additional
guidance on how the courts should interpret the provisions relating
to libel tourism. We also believe that in such cases the courts
should have regard to the damage caused elsewhere in comparison
to the damage caused here.
Further protection for publishers
57. As a general rule, claims for defamation must
be started within one year of publication.
The aim is to protect publishers from facing open-ended liability
for what was said and done in the past. This widely accepted principle
does not always work in practice due to a legal principle, known
as the multiple publication rule, under which each republication
of the material restarts the one-year period.
For example, a claim can be pursued in relation to paper publications,
such as a printed newspaper or magazine, where a single back-copy
has been sold within the last year, even though the original edition
may have been published and then forgotten about many years earlier.
The rule operates with particular harshness in relation to many
electronic communications, since the one year period restarts
every time that an online article or webpage is viewed. A huge
amount of published material is now stored in online archives,
leaving many publishers exposed indefinitely to defamation claims.
SINGLE PUBLICATION RULE
58. We strongly support the draft Bill's introduction
of a single publication rule, under which the one year period
runs from the date of original publication and does not restart
each time the material is viewed, sold or otherwise republished.
This measure strengthens freedom of speech by providing far greater
protection to publishers.
It equally safeguards the right to reputation since the court
has discretion to extend the one-year time-period whenever it
is just to do so; and, further, the new rule applies only to material
that is "substantially the same" as the original publication.
It specifically will not apply to material that is published in
a "materially different manner" taking into account
the level of prominence and extent of the subsequent republication.
We acknowledge that any republication of a defamatory allegation
can be damaging, but the person who is harmed can bring a defamation
claim where justice requires. We accept that some increase in
the level of litigation may arise while the courts establish the
precise workings of a "single publication" approach,
including the meaning of "substantially the same" and
a "materially different" publication. But, on balance,
the draft Bill represents a far fairer scheme for publishers,
both online and in print.
59. We are, however, concerned that the single publication
rule is too narrow as presently drafted. While it protects the
individual who originally published the material once the one
year period has expired, it does not protect anyone else who republishes
the same material in a similar manner. For instance, an archive
that publishes material written by someone else could be sued
successfully, even though the original author could no longer
be pursued for continuing to make the material available to readers.
A publisher who republishes material previously published by a
different person will similarly be exposed. In our view the
single publication rule should protect anyone who republishes
the same material in a similar manner after it has been in the
public domain for more than one year.
Further, the Government must clarify that merely transferring
a paper-based publication onto the internet, or vice versa, does
not in itself amount to republishing in a "materially different"
manner, unless the extent of its coverage in the new format is
very different. Otherwise the usefulness of the single publication
rule would be undermined. It would also create a disincentive
against making publications widely available in different mediums.
60. As a final point in relation to the protection
of publishers, we were made aware that what appears to be a change
to the so called "innocent dissemination" defence, when
it was put on a statutory footing by the Defamation Act 1996,
has weakened the position of "secondary publishers".
It means in effect that any secondary publisher such as a bookseller
who is not the original author and has no editorial control over
the published material becomes liable as soon as being made aware
that some of the publication's content may be defamatory. Prior
to 1996 the secondary publisher appears to have had a defence
if they reasonably believed (for example, on the basis of reasoned
assurances from the author or primary publisher), that the defamatory
material was defensible.
The reform implemented by the 1996 Act has, in this respect, been
unduly harsh on secondary publishers. We recommend that the
Government amends the "innocent dissemination" defence
in order to provide secondary publishers, such as booksellers,
with the same level of protection that existed before section
1 of the Defamation Act 1996 was introduced.
Recommended changes to the draft
61. This section summarises the changes we recommend
are made to each clause of the draft Bill, with additional reasoning
where the arguments are not made in earlier sections of this chapter.
CLAUSE 1: SUBSTANTIAL HARM
62. We recommend replacing the draft Bill's test
of "substantial harm" to reputation with a stricter
test, which would have the effect of requiring "serious and
substantial harm" to be established.
CLAUSE 2: RESPONSIBLE PUBLICATION
ON MATTER OF PUBLIC INTEREST
63. The Reynolds defence of responsible journalism
in the public interest should be replaced with a new statutory
defence that makes the law clearer, more accessible and better
able to protect the free speech of publishers.
The Bill must make it clear that the existing common law defence
will be repealed.
64. Overall, we support the approach that is taken
in clause 2 of the Bill. In particular, we agree that the term
"public interest" should not be defined. It is far
better for this term to be interpreted flexibly by the courts,
as at present, than risk a definition that restricts the defence
by failing to cover all of the disparate issues which may engage
the public interest.
65. The list of factors that is used to determine
whether a publisher has acted responsibly should be amended as
a) A new factor should be added that refers
to the "resources" of the publisher since it is
not appropriate to expect the same level of pre-publication investigation
from a local newspaper, non-governmental organisation or ordinary
person as we should expect from a major national newspaper. It
is entirely appropriate to treat "responsibility" as
a flexible standard that considers resources alongside other important
issues such as the seriousness, nature and timing of the publication;
b) A reference to "the statement in context"
should be added to clause 2(1)(c) to make it clear that the
publication must be read as a whole rather than focusing primarily
upon the words that are subject to complaint;
c) The term "urgency" should be
removed from clause 2(1)(g) and replaced with a more general test
of whether "it was in the public interest for the statement
to be published at the time of publication". There is
a danger that referring to urgency will make the defence narrower
than is appropriate by focusing unduly on whether the publication
could have been delayed to allow for additional investigation,
rather than considering whether it was published at an appropriate
d) The reference to whether the publication
draws "appropriate distinctions between suspicions, opinions,
allegations and proven facts" at clause 2(1)(h) should be
removed. The purpose of this expression is to make it clear
that opinion is fully protected by the public interest defence,
which we support. However, this approach creates a risk that the
courts will be drawn into an overly analytical examination of
the publication line by line. In our view, it is sufficient for
the Bill to refer to the "tone of the statement" at
clause 2(1)(h). We note that the seriousness of the imputation
(for example, whether it is pitched as suspicion or guilt) is
already something that may be taken into account under clause
e) Further, when deciding whether publication
was responsible, the court should have regard to any reasonable
editorial judgment of the publisher on the tone and timing of
66. We acknowledge the criticisms that have been
expressed about the breadth of the reportage
defence at clause 2(3) of the draft Bill.
In particular, it would appear to allow publishers to repeat almost
any defamatory remark made by a third party in a context of a
current controversy that relates to a matter of public interest.
There are occasions, especially in political debate, when there
is a public interest in neutrally reporting both sides of a dispute
without having to form a responsible judgment as to who is right.
However, we agree that a limit is required. Our preferred option
is to permit publication only when the reporting of the dispute
is in the public interest (and not merely when the dispute concerns
a matter of public interest). We also believe that the neutral
reporting of a dispute should form one of the factors for determining
responsibility, rather than automatically being viewed as responsible.
Therefore, we recommend that the "reportage" defence
at clause 2(3) is reformulated as a new matter to which the court
may have regard under clause 2(2) namely "whether it was
in the public interest to publish the statement as part
of an accurate and impartial account of a dispute between the
claimant and another person."
CLAUSE 3: TRUTH
67. We recommend that the name of the "truth"
defence be changed to "substantial truth" which better
describes the nature of the test that is applied. We also recommend
that the Government includes a provision, in line with Lord Lester's
approach, to make clear that a defamation claim should fail if
what remains unproved in relation to a single allegation does
not materially injure the claimant's reputation with regard to
what is proved. This should assist in providing clarity.
68. The Bill should be amended, if necessary by
a new clause, to provide the judge deciding a defamation case
at final trial with the power to order the defendant to publish,
with proportionate prominence, a reasonable summary of the court's
judgment. In cases where media and newspaper editors are responsible
for implementing such orders they should ensure that the summary
is given proportionate prominence.
CLAUSE 4: HONEST OPINION
69. We support the Government's proposal to place
the defence of honest opinion on a statutory footing, subject
to the following amendments:
a) The term "public interest" should
be dropped from the defence as an unnecessary complication.
The law's protection of the right to personal privacy
(which is another aspect of Article 8 of the ECHR) and confidentiality
are now well established and can be used to prevent people from
expressing opinions on matters that ought not to enter the public
domain. In this respect, the public interest test no longer serves
a useful purpose. It also creates the potential for confusion
with the identically worded, but narrower, public interest test
under the draft Bill's defence of responsible journalism in the
public interest. Further, we note that it may be a breach of
the right to free speech under Article 10 of the ECHR to require
a person to prove the truth of a value judgment irrespective of
whether it concerns a matter of public interest or not;
b) At present, the Bill protects "bare opinions"
by which the author makes a statement without any indication of
the nature of the facts on which it is based. For instance, a
bare opinion would include a statement that 'in my view Mr X is
a disgrace as a surgeon'. Historically this type of allegation
was treated as a statement of fact and was not therefore protected
by the honest opinion defence. As the Supreme Court recently pointed
out, this approach is artificial because it plainly is an expression
of opinion. The reason for being cautious about offering legal
protection to such a bare statement of opinion is clear. Readers
are left without any way of assessing the real nature of the criticism,
and the victim is seriously handicapped in defending him or herself
in response. If the general subject matter of the opinion is known
(for example, it may be the surgeon's safety record or merely
the dress that he or she wears on ward rounds), it informs the
reader who may also then be better able to judge its merit and
helps the person who is attacked to better defend their reputation.
A further benefit is that it allows the court to limit the scope
of its factual inquiry which will save time and costs in line
with our core principles. The Bill should not protect "bare
opinions". It should be amended to require the subject area
of the facts on which the opinion is based to be sufficiently
indicated either in the statement or by context. We emphasise
that the context will often be more than sufficient to make the
general subject matter of the opinion entirely clear to the reader;
c) Neither the Government's draft Bill nor
Lord Lester's Bill imposes any requirement that the commentator
need know the facts relied on to support the opinion. In line
with our concern to improve clarity, we welcome this change, which
removes an undesirable layer of complexity. This is a significant
change to the present common law. We see the attraction of the
argument that people can only comment on facts they know. However,
often those facts will not have been evident at the same time
as the comment. Public interest issues can retain topicality for
some time, making it more difficult to identify what facts were
known when. People variously rely on skim reading, summaries by
others, fleeting internet searches, and what they read and see
in the media. There are also difficulties with the common situation
where the media are reporting comments by others, whose knowledge
of the background facts may be unknown, and where only the media
are sued and the original commentator may not be prepared to assist.
However, the removal of the knowledge test makes it doubly important
that there is a requirement that the general nature of the facts
underlying the comment is indicated in the publication. That requirement,
and the honesty test, should provide sufficient protection. While
there may be hard cases, we believe that this defence at the core
of free speech will benefit from simplification. We also have
in mind that generally defamatory opinions (which must be recognisable
as such) are less destructive of reputation than defamatory allegations
d) The Bill should require the court, when
deciding whether an honest person could have held the relevant
opinion, to take into account any facts that existed at the time
of publication which so undermine the facts relied on that they
are no longer capable of supporting the opinion. This appears
to be a problem which neither the Government's Bill nor Lord Lester's
Bill satisfactorily addresses. A person may honestly express a
defamatory opinion on the basis of a fact which, though once true,
has by the time of publication wholly lost its validity for reasons
which may be unknown to the commentatorfor example on the
basis of a conviction later overturned on appeal. It seems to
us that in such cases, which we accept will arise very rarely,
the defence should not be available. This may require delicate
drafting, but we believe the point should be addressed. Some consideration
would have to be given to whether (and when) the invalidating
facts became publicly available prior to the date of publication;
e) The Bill should require the statement to
be recognisable as an opinion, in line with Lord Lester's
Bill. We consider it is essential that the defence only arises
where the ordinary reader or viewer will recognise the statement
as an opinion. This is especially important in relation to inferences
of fact which the commentator may draw from other facts, which
may be more damaging than mere value judgments.
However they often form a crucial part of the debate on public
interest issues. We believe that such opinions should qualify
for the defence, provided they are clearly recognisable as only
representing the author's opinion; and
f) The vague reference to "privilege"
must be clarified to make it clear that this term is confined
to the absolute or qualified privilege which presently attaches
at common law or by statute to the fair and accurate reporting
of various types of public proceedings or notices. The Bill
is unclear as it stands and is an invitation to further litigation
as to what it means. More fundamentally it would, read literally,
protect comments expressed on wholly false statements contained
in private communications where publisher and recipient have a
common law defence of qualified privilege based on a reciprocal
duty and interest. We do not believe the MoJ intended this result.
CLAUSE 5: PRIVILEGE
70. Qualified privilege should be extended to
fair and accurate reports of academic and scientific conferences
and also to peer-reviewed articles appearing in journals.
CLAUSE 6: SINGLE PUBLICATION RULE
71. The single publication rule should protect
anyone who republishes the same material in a similar manner after
it has been in the public domain for more than one year. It should
be clarified that the simple act of making a paper-based publication
available on the internet, or vice versa, does not in itself amount
to republishing in a "materially different" manner.
CLAUSE 7: ACTION AGAINST A PERSON
NOT DOMICILED IN THE UK OR A MEMBER STATE ETC
72. The Bill should make clear that residents
in England and Wales may sue in this jurisdiction in respect of
publication abroad provided there has been serious and substantial
harm suffered by them. In particular, this section should not
be applicable to residents of England and Wales who wish to sue
in respect of publication abroad where there is permission under
the current law. The clause should be confined to foreign parties
using English courts to resolve disputes where the principal damage
has not been suffered here. In line with the Lord Lester Bill,
the courts should be required, when determining this issue, to
assess the harm caused in this country against that caused in
CLAUSE 8: TRIAL TO BE WITHOUT A
JURY UNLESS THE COURT ORDERS OTHERWISE
73. There should be added provisions setting out
the circumstances in which a trial by jury may be ordered. These
circumstances should generally be limited to cases involving senior
figures in public life and ordinarily only where their public
credibility is at stake.
24 See paras 61-73 for our detailed recommendations. Back
Q 473 [Clarke] Back
Q 525 [Scotland]; Q 585 [Tomlinson]; Q 586 [Browne] Back
Senior Courts Act 1981, section 69; County Courts Act 1984, section
Ministry of Justice, Report of the Libel Working Group Report,
March 2010, p 85; there have been no trials by jury in defamation
cases for more than 18 months: see Q 30 [Lester]. Back
The right to apply for jury trial exists only in claims relating
to fraud (although it is not in practice ordered), false imprisonment
and malicious falsehood. Back
Cm 8020, p 37 Back
Liberty, Vol II, p233-236. Back
Cm 8020 p 37; Q 611 [Mr Justice Tugendhat]. The same arguments
that are heard initially by the judge are often replayed again
in front of the jury, which results in increases to costs and
the length of proceedings. There are also potential additional
costs if there is a hung jury and a retrial. Back
Rt Hon Lord Justice Jackson, Review of Civil Litigation Costs;
Final Report [hereafter, "the Jackson Report"],
Chapter 32, para 6.3. The Law Reform Committee estimates that
jury trials last "perhaps twice as long" as non-jury
trials (Vol III, p 153). Back
As the law stands, public interest is an issue for the judge,
not the jury, in relation to both honest opinion and qualified
Law Reform Committee, Vol III, p 153; Q74-75; Professor Mullis
and Dr Scott, Vol II, p 140. Back
Thornton v Telegraph Media Group Ltd  EWHC 1414 (QB);
Jameel v Dow Jones  EWCA Civ 75;  QB 946. Back
Jameel v Dow Jones  EWCA Civ 75;  QB 946. Back
Some witnesses believed that the introduction of this test risked
lowering the existing threshold (e.g. Q 91 [Stephens]), while
others considered that it would either stay the same or be raised
higher than the existing law (e.g. Law Society, Vol III, p 89). Back
Q 491 [Clarke] Back
Letter to the Committee from Lord McNally, dated 28 June 2011,
Vol II, p424 Back
See for example Q 303 (Mackay) and Libel Reform Campaign, Vol
II, p71 Back
Chapter 3 sets out our views on the early resolution procedure
that should lead to key issues, such as the substantial harm test,
being decided at an early stage in the proceedings. Back
The courts offered support to this approach in Loutchansky
v Times Newspapers Ltd & Others  EWCA Civ 1805,
 1 All ER 652. Back
See Chapter 3 Back
Reynolds v Times Newspapers  4 All ER 609,  2 AC
Reynolds v Times Newspapers, above; Jameel v
Dow Jones  EWCA Civ 75;  QB 946 Back
Loutchansky v Time News Ltd (Nos 2-5)  EWCA Civ 1805
(international crime); Charman v Orion Publishing Group Ltd
 EWCA Civ 972 (police corruption); Armstrong v Times
Newspapers Ltd  Civ 1007 (drug taking in sport); James
Gilbert v MGN Ltd  EMLR 680 (use of child labour). Back
Some witnesses considered that the defence is working satisfactorily
and should not be reformed (e.g. Q 206 [Rusbridger]; others felt
that the defence would benefit from codification and/or reform
(e.g. JUSTICE, Vol III, p77) Back
Cm 8020, paras 9-12; Libel Working Group at paras 62-66; Simon
Singh, Vol II, p386; Global Witness, Vol II, p249-251; National
Union of Journalists, Vol II, p352-353. Back
See Jameelv Dow Jones  EWCA Civ 75; NUJ, vol II,
p 353; JUSTICE, vol III, p75. Back
See clause 2 of the Government's draft Bill; see clause 1 of Lord
Lester's Bill. Back
Libel Reform Campaign, Vol II, p73-74; see also the similar but
alternative proposals put forward by Which?, Vol II, p242-243
and Marcus Partington (Q 110) based on section 32 of the Data
Protection Act 1998. Back
Lord Lester of Herne Hill, Vol II, p15; Law Society, Vol IIIi,
p 91-92; Q 147 [Tait]. Back
A further alternative was put forward by Alastair Brett under
which statements on issues of public interest are protected provided
the (allegedly) defamed person is given a right of reply or apology.
We have already expressed our view that rights of reply and apologies
are best taken into account in this context when considering whether
a matter is sufficiently serious to be treated as defamation. Back
See Media Lawyers Association, Vol II, p172; Which?, Vol II, p242-243;
Lord Lester of Herne Hill, Vol II, p15. Back
Lord Lester of Herne Hill, Vol II, p15. Back
See, for example, Law Reform Committee, Vol III, p146-148 and
Q 122 [Tait] Back
Para 20 Back
Those who favoured leaving the existing defence alone included
Alan Rusbridger [Q 209];and former members of the senior judiciary
including Lord Hoffmann, HL Deb, 9 July 2010, col 432. Radical
proposals for reform were put forward by Libel Reform Campaign;
Which?; Alastair Brett, as considered above at paragraph 35. Back
See, for instance, the Law Society, Vol III, p91; JUSTICE, Vol
III, p77-78. Back
There may be occasions where the law has to restrict what can
be published for reasons of national security, privacy or confidentiality.
Whilst we note the degree of overlap that can arise between these
different areas of law, our comments and recommendations relate
exclusively to the law of defamation particularly in light of
the ongoing inquiry of the Joint Committee on Privacy and Injunctions
on which further information is available at http://www.parliament.uk/business/committees/committees-a-z/joint-select/privacy-and-superinjunctions/
Defamation Act 1952, section 5. Back
See para 67 for details. Back
See, for example, Q 137 [Clarke-Williams] and Q 141 [Christie-Miller]. Back
Defamation Act 1996, section 9. Back
See Cm 8020, consultation questions 35-36. Back
Q 796 Back
Daily Mail, 30 July 2011, p 2. Back
Paragraph 1(iv) of the Code. Back
See, for example, Q 794 [Dacre]; Q 196 [Johnston]; Q 300 [Wakeham];
Q 198 [Rusbridger] Back
Spiller v Joseph  UKSC 53. Prior to Spiller
case the defence was known as 'fair comment'. Following the Supreme
Court's judgment the defence is available where: a) the words
complained of constitute comment, rather than a statement of fact;
b) the words, at least in general terms, specify what it is that
has led the commentator to make the comment, so that the reader
can understand what the comment is about; c) the facts upon which
the comment is made must be true; d) the comment is one which
a person could honestly make, however prejudiced, on the relevant
facts (even if the comment was objectively unreasonable given
the relevant facts);e) the comment is on a matter of public interest
(which in this context means legitimate public concern); and f)
the publisher did not act maliciously. Back
See, for example, Q 544 [Scotland]. Back
Spiller v Joseph  UKSC 53 at para 117. Back
Originally contained in the Defamation Act 1952 and now set out
in the Defamation Act 1996, section 15 and Schedule 1. Back
See clause 5. Back
See, for example, Dr Wilmshurst who outlined the chilling effect
on members of the medical profession, Vol III, p26 at para 22. Back
Q 41 [Tracey Brown] Back
Dr Simon Singh, Vol II, p385-403; Dr Ben Goldacre, Vol II, p379-381;
Dr Peter Wilmshurst, Vol III, p21-37; our attention was also drawn
to threats of litigation made against Dr Heinrik Thomsen and Dr
Dalia Nield, among numerous other less publicised examples. Back
See the illustrations provided by Dr Peter Wilmshurst, Vol III,
p34 and his article, The effects of the libel laws on science-a
personal experience, Radical Statistics, Issue 104, p 13-23. Back
Clause 5(7); it is only the report of a conference that is protected,
specifically the speaker at the conference does not receive protection
under clause 5(7) and would have to rely on an existing defence
if pursued for defamation in relation to theri contribution at
a conference. Back
We emphasise that our reference to journals does not include
the editorial or other types of entry besides articles that have
undergone a peer-review process before being published. Back
For example, see the evidence of Dr Simon Singh, Vol II, p386-387. Back
Q 441 [Godlee]; Q 442 [Campbell and Singh]. Back
Mr Justice Tugendhat and Lord Neuberger (at Q 638), who directed
their observations to the potential ambiguity of the term "scientific
and academic conference". Back
See the Report on the Joint Committee on Parliamentary Privilege,
HL 43-I/HC 214-I, April 1999, available at http://www.publications.parliament.uk/pa/jt/jtpriv.htm Back
Queen's Speech, 25 May 2010, available at http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/100525-0001.htm Back
See the 1999 Joint Committee on Parliamentary Privilege, above,
para 374; Culture, Media and Sport Committee, Press Standards,
Privacy and Libel, para 101. Back
Master of the Rolls, Report of the Committee on Super-Injunctions:
Super-Injunctions, Anonymised Injunctions and Open Justice,
May 2011, para 6.2. Back
Lord Neuberger's report, above, at page vii. Back
As above, para 6.33. Back
Clause 7 Back
Lord Neuberger's report, above, para 6.12. Back
See the examples provided by John Hemming MP during a Westminster
Hall debate on 17 March 2011, available at http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110317/halltext/110317h0001.htm Back
Lord Neuberger's report, above, para 6.14. Back
Defamation Act 1996, section 14 Back
Q 228 [Rusbridger] Back
The SPEECH Act (Seeking the Protection of our Enduring and Established
Constitutional Heritage) was passed in the United States in 2010. Back
See, for example, the unsuccessful litigation brought by the Ukrainian
businessman, Rinat Akhmetov, against two Ukrainian newspapers
which was dismissed by the High Court earlier in 2011. Back
Under the common law forum non conveniens doctrine, although
under EU law a person domiciled in a Member State can be sued
in another Member State if that is where the harmful event occurred. Back
See Libel Reform Campaign, Vol II, p78; Global Witness, Vol II,
p254; Reuters submission to Government consultation (not published). Back
See para 72 for detailed changes required. Back
Limitation Act 1980, section 4A Back
This rule was established in Duke of Brunswick v Harmer
 14 QB 185. Back
In making this observation, we note that the courts have power
to strike out claims that are based on minimal levels of publication. Back
Alternatives to the single publication rule were put forward,
such as for a new defence of "non-culpable republication",
but we do not accept that it improves on the Government's proposals:
Professor Mullis and Dr Scott, Vol II, p128-130. Back
Clause 6(2)-(5) Back
Clause 6(4)-(5) Back
Lord Lester of Herne Hill, Vol II, p27; Libel Reform Campaign,
Vol II, p77; Dr Simon Singh, Vol II, p392. Back
The problem is explained by the Booksellers Association as follows:
"Under the provisions of section 1 a secondary publisher
loses his protection if (inter alia) he knows or has reason to
believe that the publication contains any defamatory statement.
Under the pre-1996 common law defence of innocent dissemination
a reasonable belief aon the part of the bookseller that the allegedly
defamatory material was not libellous-because, for example, he
had been assured by his lawyers or those representing the author
or publisher that it could be justified-constituted a defence
for the bookseller. Since 1996, however, because of the way section
1 of the 1996 Act is worded this defence is no longer available.
As a result, the claimant can effectively prevent the sale or
distribution of the book by simply having a letter written to
the bookseller alleging a defamatory passage and threatening legal
proceedings against the bookseller unless the book in question
is withdrawn. The bookseller cannot now simply claim as a defence
that he has a reasonable belief that the defamatory passage is
not libellous and continue to sell the book in question."
Vol II, p345. Back
The PCC's Editors' Code of Practice attempts a definition: "The
public interest includes, but is not confined to:
i) Detecting or exposing crime or serious impropriety; ii) Protecting
public health and safety; iii) Preventing the public from being
misled by an action or statement of an individual or organisation."
This may be too restrictive in the context of defamation law. Back
Lord Lester of Herne Hill, Vol II, p14; Index on Censorship, Vol
II, p94 and 101; JUSTICE, Vol III, p79. Back
The defence of "reportage" is intended to protect a
publisher who neutrally reports on a dispute between two other
parties. It represents a departure from the "repetition rule"
which prevents publishers from being able to rely on a defence
based on repeating the words spoken, or allegations made, by another
See, for example, the Law Reform Committee, Vol III, p148-150. Back
Campbell v MGN Ltd  UKHL 22 Back
Lingens v Austria (1986) 8 EHRR 407 at  Back
Further, we note that any publication relating to a matter of
public interest that has been published by a person who was acting
responsibly may benefit from the so-called Reynolds defence, as
reformed by clause 2 of the draft Bill. Back
See the observations of Lord Phillips in Spiller at para