Question 1

Do the reforms to defences in the Defamation Act 2013 strike a fair balance between freedom of expression and the protection of reputation?

Outline

• The defences to defamation are one of the most important protections of freedom of speech in English law. The Defamation Act 2013 has clarified and extended existing defences and introduced a number of new defences update and clarify the law and to protect website operators from libel claims arising from defamatory user comments.
• Where the statement complained of is substantially true the Defamation Act 2013 Section 2 (1) provides a statutory defence of truth (to replace the common law Justification defence). Truth is a complete defence to an action in defamation and since the law presumes a defamatory statement to be untrue, the onus is not on the claimant to prove the statement was false; the burden of showing the truth of the statement is on the defendant. Where a statement is shown to be true, even if it was made with malice, there is no liability in defamation (apart from exceptions in the Rehabilitation of Offenders Act 1974).
• A new defence of honest opinion which replaces the common law defence of fair comment has been introduced by Section (3) of the 2013 Act. Honest opinion, like justification, is a complete defence to an action in defamation. Although the statutory defence of honest opinion is largely a restatement of the current law, the cases interpreting what amounts to a statement of fact and what is a statement of opinion continue to be relevant. The requirement for the opinion to be on a matter of public interest is not contained in the 2013 Act, which gives protection to all opinion.  Prior to the Act, honest comment failed if the claimant could show malice on the part of the defendant. However, all the defendant now needs to show is an honest belief in the truth of the opinion.
• Section 4 of the Defamation Act 2013 creates a new defence for defamation of publication on a matter of public interest. This new defence is intended to reflect the principles established in Reynolds v Times Newspapers (2001) and in subsequent case law.
• Section 4 may be relied on irrespective of whether the statement complained of is one of fact or opinion. The Act does not say that the defence is defeated by malice but since it is based on ‘reasonable belief’ that publication was in the public interest, the presence of malice should be a relevant factor in determining the defendant’s belief when he published the statement. Although the Act abolished the Reynolds defence and the courts will be required to apply the words used in the statute, it does not, for example, define what is meant by ‘the public interest’.
• The 2013 Act gives protection in situations where defendant is not the author of the statement but is publishing statements made by others. In these circumstances honest opinion will succeed unless the claimant can show that the defendant ought to have known that the opinion stated was not held by the author.
• Attempts by large corporations to stifle scientific and academic debate with the threat of libel proceedings were addressed in the Defamation Act 2013. The Act creates a new defence of qualified privilege relating to material in scientific or academic journals, whether published in electronic form or otherwise, which has undergone a responsible peer-review process.
• Concerns about the chilling effect on freedom of speech in respect of internet publication has resulted in greater protection for website operators and online intermediaries from liability for online content for which they are not responsible. Tamiz v Google Inc (2013). Section 5 of the Defamation Act 2013 aims to protect the website operator by shifting more responsibility for defamatory content to the author of web posts. 
• The Act aims to rebalance the law on defamation to provide more effective protection for freedom of speech but note the concerns Mullis and Scott (2010) express about its effectiveness. 

Question 2

Before taking up a new appointment as editor-in-chief of a national newspaper, Graeme was the editor of the Fern Hill Gazette. Hilary, a freelance sports journalist, writes a weekly column for the Fern Hill Gazette and also for a rival newspaper, the Globe Observer. Hilary has never forgiven Graeme for his refusal to make her a member of the permanent staff on the Fern Hill Gazette. Two months ago Rhodri provided Hilary with information to suggest that Graeme had been implicated in a ‘cash for lobbying scandal’ involving Sir Arthur, a Member of Parliament. In her latest column in the Globe Observer Hilary refers to Graeme’s new appointment and states that: ‘his career has advanced considerably since his cash for lobbying deal with Sir Arthur’. The allegation is untrue and Graeme has started legal proceedings against the Globe Observer.

Explain any defences that may be available to the Hilary and the Globe Observer in respect of Graeme’s claim in defamation.

Outline

Graeme

• One of the key provisions of the 2013 Act is that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.  The question here is whether the statement that Graeme (a newspaper editor in a position of trust) was involved in dishonest and unlawful behaviour, meets the serious harm threshold. The statement the Globe Observer likely to meet the serious harm threshold.
• The test for reference to the claimant is not what the defendant intended but whether reasonable people would believe the words referred to the claimant. In this case Graeme was named so showing that the words referred to him presents no difficulty.
• The word ‘publication’ in the law of defamation has a technical meaning not related to newspapers or to the printed press; publication simply means communicating the statement to at least one person other than the claimant. The statement here was ‘published’ in the Globe Observer.
• Does Hilary have a defence? Section 4 2013 Act ‘reasonable belief’ that publication was in the public interest. The defence may be relied on irrespective of whether the statement complained of is one of fact or opinion.
• Graeme’s refusal to make Hilary a member of the permanent staff on the Fern Hill Gazette may be evidence of malice. Although the Act does not say that the public interest is defeated by malice this factor may show a lack of ‘reasonable belief’ on Hilary’s part that publication of the statement was in the public interest.