The UK’s libel reform proposals are a good start

UK Ministry of Justice logo, via their siteThe 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.

The Bill contains only 10 sections, but, for all its brevity, there are three areas in which it goes substantially further than the Act. First, clause 1 of the Bill requires that a statement is not defamatory unless it has caused or is likely to cause substantial harm to the plaintiff’s reputation. There is no equivalent requirement of substantial harm in the Act. However, in Thornton v Telegraph Media Group [2010] EWHC 1414 (QB) (16 June 2010), after a thorough review of the authorities, Tugendhat J held that the common law definition of “defamatory” must include a qualification or threshold of seriousness, so as to exclude trivial claims, both as a matter of precedent and to give effect to Article 10 of the European Convention on Human Rights. Section 3(2) of the Act provides that it does not affect the general law of defamation “except to the extent that it provides otherwise (either expressly or by necessary implication)”. It is an open question whether this threshold of substantial harm forms part of Irish law, since there was no direct authority on the point before the coming into operation of the Act. However, if it does form part of the general law of defamation, it could have been preserved by section 3(2), unless the definition of defamation in sections 2 and 6 of the Act is taken to be the full definition of defamation, and thus excludes it by necessary implication. One of the definitions in section 2 provides that

“defamatory statement” means a statement that tends to injure a person’s reputation in the eyes of reasonable members of society, and “defamatory” shall be construed accordingly;

Section 6(2) provides

The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person), and “defamation” shall be construed accordingly.

Neither of these statements includes a threshold of substantial harm, and the words “means” and “consists” point to the completeness of the statutory words, so I think it very likely that section 6(2) will be taken to exclude common law threshold of substantial harm by necessary implication. But the matter does not end there. Section 2 of the European Convention on Human Rights Act, 2003 (also here) requires that statutes be given interpretations compatible with the Convention. If Tugendhat J is right that the threshold of substantial harm is necessary to give effect to Article 10 of the Convention, then it may be that sections 2 and 6(2) will have to be interpreted as though they incoroprated that threshold – perhaps by holding that the requirement of injury to reputation in section 2 will only be made out if there is or can be a serious (Thornton) or substanial (clause 1 of the Bill) harm to the plaintiff’s reputation. But this is not straightforward as a matter of Irish law. For this reason alone, the clarification of the issue in clause 1 of the Bill represents a signification improvement of the position under the Act.

The second area in which the Bill goes much further than the Act is clause 7: it is expressly directed to the issue of libel tourists, on which the Act is silent. This may of course have the consequence that libel tourists, denied the possibility of visiting London, may decide to sample the many tourists attractions available in Dublin instead.

And the third area in which the Bill goes much further than the Act relates to trial by jury. This was expressly preserved by the Act, whereas it is effectively abolished by clause 8 of the Bill, unless the court orders otherwise. This is likely to be one of the most significant changes in practice, since many common law rules are crafted towards a jury, and high libel damages are usually put down to the irasciblity of juries.

The brevity of the Bill also means that there are many areas covered by the Act which are not addressed in the Bill. Sometimes, this is because issues covered by the Act (limitations, meaning, evidence of convictions, and summary disposal) were already covered in earlier UK legislation, such as the UK’s Defamation Act, 1996 (though the consultation does seek responses on whether the existing summary procedure ought to be retained or reformed). Sometimes, this is because it is unnecessary – for example, the Bill does not provide for a Press Council as the Act did, because there already is a Press Complaints Commission in the UK. Those kinds of examples aside, there are many things in the Act that are absent from the Bill which I would have expected to find there. In particular, there does not seem be an alteration of the common law relating to the effect of an apology in section 24 of the Act. Nor is there a declaratory order procedure similar to section 28 of the Act. The consultation does ask for observations on a fast track procedure which would have effects similar to section 28 of the Act (but it would be limited to the High Court, whereas 28 Act allows such actions to be taken in the Circuit Court as well). It is unfortunate that this issue is relegated to the second division of a call for comment rather than provided for in the premiership of of the draft Bill itself.

Nor is there any equivalent in the Bill to the powers of the court in the context of damages (also here) in section 31 of the Act, and the related powers of the Supreme Court on appeal in section 13 of the Act. These clarifications might have been thought unnecessary given that they would in part codify the existing English common law rules, and that are in part unlikely to be necessary in so far as they apply to juries. But clause 1 re-enacted and clarified the common law in important respects, and that strategy might with profit have been adopted here too.

Another absentee from the Bill is an equivalent of the verifying affidavit in section 8 of the Act. This affidavit was a concession to the arguments against the presumption of falsity, but the issue of this presumption is not at all addressed in the Bill (if it were, it would likely have been in clause 9), and there is no concession like section 8 of the Bill, though the consultation does raise the question of whether further proposals are needed to address issues relating to an inequality of arms in defamation proceedings, so the question of the presumption of falsity may very well come up again in that context.

Roy Greenslade gives three cheers for the Bill, the Libel Reform Campaign has given the Bill a cautious welcome, Legal Week comments that it contains few surprises and little radicalism, and Inforrm’s blog concludes that it is mostly harmless. At this point, I will simply say (as I have said before in the context of other reform campaigns): be careful what you wish for. If the reform is too partial, it will not work a sufficient improvement in the law, and the opportunity for genuine progress will be lost for a generation. It is too soon to tell whether the Bill goes far enough, but it is certainly a good start, and a good start is half the work.