One change that may have gone unnoticed amid the usual 1st January mess of paper hats and broken resolutions this year is that the Defamation Act 2013 has finally been brought into law.
For an area of law often perceived as archaic, the Act seeks to re-frame it in more everyday terms: truth, honesty, harm. One aim is to make the law clearer for those most affected: not just those working in publishing, PR and reputation management, but also the academic and scientific community – or indeed anyone running a website.
While much trumpeted by reformers, many commentators feel that – for the large part – the Act does little more than codify existing trends in the Courts’ approach. Nevertheless, practitioners know that where there is statutory change, it is likely that new issues of interpretation will be raised. This brings uncertainty as well as opportunity to claimants.
We have identified five things which you ought to know about the Defamation Act 2013, and why they are important to you:
1) We have entered the era of ‘serious harm’
The most fundamental change, set out in s.1, is the test for establishing whether there has been defamation: that is, only where “publication of a statement has caused, or is likely to cause serious harm to the reputation of the claimant”.
Some commentators consider the Act a missed opportunity to nail down once and for all what ‘defamatory’ means. There remains no statutory definition (and those from case law are showing their age): but the requirement for ‘serious harm’ at least provides a practical yardstick by which the trivial can be distinguished from viable claims. Solicitors may have to be more discerning, or imaginative, in firing off letters to web forums (see also s.5 notices, which we will cover in the next part).
For corporations (as opposed to individuals), the change in emphasis is more material: to qualify as ‘serious harm’, a comment must be likely to cause a company “serious financial loss”. In practice, it seems likely that – reversing the longstanding position – actual loss will have to be evidenced for a claim to be brought.
2) Statements aren’t limited to words
Statements are not limited to mere words: a statement can be any method of “signifying meaning”, from photographs and pictures to gestures. Nothing has changed in the new act from the definition found in the Defamation Act 1996, but – as seen also in the development of privacy law over the last 15 years – this provision reflects the harm that picture-led stories, in particular, can cause to reputation.
3) The sword of ‘Truth’ will serve as a defence
This might seem like a no-brainer, but since the burden of proof still lies with the defendant once a statement is held defamatory – despite much talk of change from libel reformers – any libel action reaching Court is still likely to be fought with this as its primary defence. For example, The Sun has indicated that it will use an old-fashioned justification defence in its upcoming ‘plebgate’ case against Andrew Mitchell: and a s.2 ‘truth’ defence under the new Act is really justification with fewer syllables.
In short, if a defendant can prove that any part of the statement is substantially true, then that is a full defence – providing that what remains unproven does not ‘seriously harm’ the claimant’s reputation. In that sense, little has changed since the Defamation Act 1952, when it was not necessary for a defendant to prove the truth of every ‘charge’, so long as the remaining charges did not ‘materially injure’ them: but the language has been given a more everyday makeover.
4) ‘Honest opinion’ will serve as a defence, so long as the facts existed to support it
The Act replaces the old defence of “fair comment” with a new handle, that of “honest opinion”.
The defence will apply to a statement if it is an expression of opinion, and if an honest person could hold the same opinion under two further conditions. Firstly, the statement must indicate, however generally, the basis on which the comment is made. Secondly, any fact from which an honest person could form such an opinion must have ‘existed’ when the statement was made (or at least, have been asserted as fact in a privileged statement – such as in Court or Parliament). This means one cannot rely on evidence emerging after the event (for example, in trial) to support a certain opinion.
This makes perfect logical sense in examining the good faith of the original “opinion”, but may present evidential paradoxes, even injustices. Say I accused a high-profile television personality of being ‘seedy’ and ‘unsavoury’ based on some general notion – perhaps I was uncomfortable with how he looked at a younger colleague (a view which a court may or may not hold to be open to an honest person). If it then emerged that he was indeed a practising paedophile, but no provable incident had occurred until after my statement, then this seemingly material fact could NOT be used to defend the opinion.
This leads to the question of when a fact may be said to come into ‘existence’. What if such an incident had previously occurred, but I could not possibly have known about it? In the wording of the statute, this fact did ‘exist’ at the time of the statement – but it was not what I was referring to. Nor, in terms of my state of mind, could it have had any impact on the ‘honesty’ of my having suggested it in the first place.
The nub of the concern is this: on a literal reading of the statute, any ‘fact’ yet in existence at the relevant time (3(4)(a)) need not necessarily be the same as the supposed fact or facts on which an opinion is actually expressed (s.3(3)) – providing such an opinion could honestly have been formed on either basis. So one could simply get lucky with a rash allegation based on the wrong facts; or conversely a defendant could be subsequently vindicated in an opinion, but be unable to rely on the crucial information. This is a curiosity which may need to be ironed out in case law.
Of course, in this example, ‘honest opinion’ might not be the end of the matter. The defence of truth could still apply, and on the balance of probabilities, the substantial truth of a statement might reasonably be inferred even from events subsequently coming to light. In any case, to bring a claim still requires a reputation worth protecting. But the example illustrates a curious piece of drafting which may create unnecessary cavities in an ‘honest opinion’ defence.
5) ‘Malice’ has a new name
…or rather, it has had a rebrand. The Act still uses the term, but it is now limited to defeating two very specific defences: website operators under s.5(11) and academic publications under s.6(6).
However the spirit of malice, as it were, still lives on – even where it is not mentioned by name. It is simplified in the case of honest opinion to a very easy rule (on paper at least): “The defence is defeated if the claimant shows that the defendant did not hold the opinion.”
As for a publisher of a third party opinion, the common law position is now set out in statute. Under s.3(6) a publisher defendant will NOT be infected by the ‘malice’ of the third party (including an author) if they reproduce in good faith an opinion which proves to be dishonest. However, they cannot rely on this defence if they themselves knew (or ought to have known) that the author did NOT hold that opinion. Still with us? If in any doubt, seek legal advice.
Owen O’Rorke – Owen is an associate at M Law
Jordan Constable – Jordan is studying law and previously worked in PR at Max Clifford Associates then PHA Media