The UK’s Ministry of Justice has announced its long-awaited consultation on the reform of the UK’s libel laws. Much of the territory covered by draft Defamation Bill was covered in Ireland by the Defamation Act, 2009 (also here), though there are some important differences as well. In this post, I want briefly to compare and contrast the UK Bill [the Bill] with the Irish Act [the Act]. To spoil the conclusion (for those of you who won’t read further than this opening paragraph) the Bill is largely in line the Act, and, in this respect, I am reminded of the Irish adage “tosach maith, leath na h-oibre“: a good start is half the work. In the end, that is what the Bill is: a good start.
Clause 2 of the Bill provides for a defence of responsible publication on matter of public interest. In many ways, this analagous to the defence of fair and reasonable publication on a matter of public interest contained in section 26 of the Act. But clause 2 is a far less mealy mouthed version of the defence than the unworkably narrow section 26 is: there are fewer hurdles to be jumped by a defendant seeking to rely upon it.
Clause 3 of the Bill provides for a defence of truth (to replace the existing defence of justification), and this is analgous to the defence of truth contained in section 16 of the Act. The Bill requires that the “imputation conveyed by the statement complained of is substantially true” whereas the Act requires that it be true “in all material respects”. Only time – and expensive cases – will tell whether this is a distinction with any real difference.
Clause 4 of the Bill provides for a defence of honest opinion (to replace the existing defence of fair comment), and this is analgous to defence of honest opinion contained in section 20 of the Act. However, the Bill is more objective than the Act – the Act requires that the opinion is honestly held by the defendant, whereas the Bill simply requires that an honest person could have held the opinion. Moreover, as with the public interest defence, the Act places more hurdles in the way of the defence than the Bill does.
Clause 5 of the Bill provides for some technical amendments to the statutory occasions of qualified privilege, which differ in the details from the similar amendments worked by section 18 and Schedule 1 of the Act.
Clause 6 of the Bill replaces the common law multiple publication rule with a single publication rule, analgous to the reform worked by section 11 of the Act. This was already the subject of a consultation in the UK, and is a very welcome proposed reform, but – unlike the situation in respect of the public interest and honest opinion defences – the UK clause is far more elaborate than the Irish section. In this respect, I much prefer the starkness of the defintion in the Act to the over-elaborate technicalities in the Bill.