Chapter 17 Answers to End-of-chapter questions

Common Law

Changes introduced by the Defamation Act 2013

1. Is the statement defamatory?

A statement is defamatory if the words or statement would ‘lower the claimant in the estimation of right-thinking members of society in general’ causing them to be shunned or avoided (Sim v Stretch [1936] at 1240).

The test for slander: Unlike a libel (which is actionable per se), an action for slander requires that the claimant’s interests were actually harmed by the defamatory statement, for example by losing money as a result of being shunned by business clients.

Defamation Act has added to the common law test as established in Sim v Stretch.

Introduction of a requirement to show substantial harm for all potential claimants: s1(1) “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant” (Jameel v Dow Jones & Co [2005] and Thornton v Telegraph Media Group [2010] had already established that trivial claims are likely to be thrown out; an action in defamation will not be possible where the damage to reputation is not sufficiently serious or is trivial, causing no actual damage to his reputation.

Section 1(1) effectively puts this on a statutory footing.

What amounts to serious harm will need to be decided on a case-by-case basis - though the 2013 Act’s Explanatory Notes [EN] suggest that section 1(1) is intended to ‘raise the bar’ from the common law tests [11]). See discussion in Lachaux v Independent Print Ltd [2019]; Monroe v Hopkins [2017]; Stocker v Stocker [2019]

Restrictions on the ability of companies to sue:
Section 1(2) of the Defamation Act 2013 provides that ‘a body that trades for profit’ may only bring a claim if it suffers ‘serious harm’, that is harm that ‘has caused or is likely to cause the body serious financial loss’.

Though serious harm is limited to those caused to a company’s financial interests (rather than, say, its goodwill or public image), this is not a particularly high hurdle. Not least because it extends to potential (as well as actual) losses.

There were four exceptions to requirement of ‘special damage’ (in cases of slander). That is, where the statement imputes:
(1) Criminal conduct (Webb v Beavan [1883])
(2) Incompetence in business dealings
(3) That the claimant has a contagious disease (Bloodworth v Gray [1844])
(4) A lack of chastity in a woman (Slander of Women Act 1891, s1).

Section 14 of the Defamation Act 2013 abolishes (3) and (4) on the basis that they were dated and potentially discriminatory.

(2) Does the Statement Refer to the Claimant?

The defamatory statement must refer to the claimant. The question to be asked is this: would a reasonable person understand the statement as referring to the claimant?

The common law position is unchanged by the Defamation Act 2013.

(3) Has the statement been published or communicated to a third party?

The defamatory statement must be ‘published’, that is ‘communicated’, to a third party.

Multiple publication: The “multiple publication rule” (Duke of Brunswick v Harmer [1849]) means that each fresh publication/communication of the defamatory statement can give rise to an action in defamation against (1) the third party who repeated the statement as well as (2) against the original maker of the statement.

Section 8 of the Defamation Act 2013 introduces changes to the multiple publication rule in circumstance (2), that is where the defamatory statement is repeated (republished) by the original maker of the statement.

The effect of section 8 is that a person cannot be sued repeatedly in defamation if they republish in “substantially the same” form a defamatory statement that they originally published (the limitation period of 12 months runs from the date of first publication to the public).

S8(1) “This section applies if a person—
(a) publishes a statement to the public (“the first publication”), and
(b) subsequently publishes (whether or not to the public) that statement or a statement which is substantially the same.”
(2) In subsection (1) “publication to the public” includes publication to a section of
the public.

In essence, this introduces a ‘single publication rule’ and means, e.g., that a newspaper cannot be sued repeatedly for something accessed via its archives.

(4) Do any defences apply?

The Defamation Act 2013 puts a number of the common law defences on a statutory footing.

(1) Justification

If the defendant can prove that the content of the defamatory statement she made is true then she will generally have a complete defence against a claim in defamation (McPherson v Daniels [1829]).
It is for the defendant (that is the person who has made the defamatory statement) to show that the statement is true – though they do not need to prove that every word is true – it is enough to establish the essential ‘sting’ (Chase v NGN [2002]).

Price and MacMahon have questioned whether that section 2 was really necessary and suggest that it might ‘create as many if not more problems than it solves’ (p 37). The common law defence of justification was relatively settled. Its restatement means that we are now in a position where the case law of common law defence has been abolished but we will need to turn to its case law in order to determine the meaning of the new defence.

There are 6 defences which are specific to the tort of defamation: (1) truth, (2) honest opinion, (3) privilege (both absolute and qualified), (4) responsible publication on a matter of public interest, (5) offer of amends and (6) innocent dissemination.

(1) Truth

Section 2 of the Defamation Act 2013 replaces and renames the former common law defence of justification with a new statutory defence of ‘truth’. See Depp II v News Group Newspapers Ltd [2020]

As with other elements of the Defamation Act, the intention is ‘broadly to reflect the current law while simplifying and clarifying certain elements’ (EN [13]).

As in common law, it is for the defendant to prove the statement is ‘substantially true’: Section 2(1) “It is a defence to an action for the defendant to show that the imputation conveyed by the statement is substantially true”. See Shakeel Begg v BBC [2016].

Section 2(3) restates the multiple allegation test from s5 of Defamation Act 1952 (which is repealed by 2(4) of the 2013 Act). It deals with a case of ‘partial truth’. If the defendant has made multiple separate imputations about the claimant, she may still be able to defeat the claimant’s entire action (even if she can’t prove all his imputations as to the claimant are true), provided those statements which she cannot prove are true do not seriously harm the claimant’s reputation when compared to the effect of those that have been proved to be true.

(2) Honest (Fair) comment

The defence of honest/fair comment provided a complete defence if the defamatory statement was an honest comment on a matter of public interest.

(2) Honest opinion

Section 3 of the Defamation Act replaces and renames the common law defence of honest/fair comment. In order for the defence to apply the following ‘conditions’ must be established:

1. The defamatory statement is a statement of opinion (not fact);
2. That indicates its basis of; and
3. Could have been held by an honest person on the basis of a fact (or something asserted as fact in a privileged statement) which existed at the time of publication (even if the defendant was not aware of the fact at the time they made the statement).

In addition, as in common law, the defendant must have honestly held the opinion (s3(5))(or, if the statement is not made by the defendant, the defendant must have known or ought to have known, that the author honestly held the opinion) (s3(6)).

Price and McMahon suggest that the one of the most ‘notable reforms’ made by section 3 is the removal of the public interest requirement (p 41). This widens the scope of the defence to an opinion on any fact or matter. They go on to note that:

“Section 3 may be said to exemplify the dangers of attempting at the same time to codify and amend a complex part of the common law. A cottage industry may result, as the courts attempt to clarify the extent to which the existing law survives, and the law will scarcely be less complex than before, since many of the same questions will arise again; and will have to be resolved anew; and new questions are liable to flow from the wording chosen for the new provisions” (p 59).

(3) Privilege

Absolute privilege: The common law position is unchanged by the Defamation Act 2013.

Qualified privilege: This defence protects the maker of a defamatory statement where the following conditions are met:

1. Reciprocity of duty or interest;
2. Public interest in frank and uninhibited communication in the situation in question;
3. Absence of malice

Situations where the defence might arise include the provision of a reference concerning a prospective employee to his potential employer (Spring v Guardian Assurance [1995]).

(3) Privilege

Absolute privilege: The common law position is largely unchanged by the Defamation Act 2013. However, section 7 amends provisions in the Defamation Act 1996 on absolute and qualified privilege in relation to the publication of certain reports of governmental, commercial and judicial proceedings.

Qualified privilege: The general common law test of qualified privilege is unaltered by the Defamation Act 2013.

However media publication in the public interest (the so-called Reynolds test) is no longer part of the law of qualified privilege, it is an independent defence of publication in the public interest (section 4) (see below).

See Economou v de Freitas [2018].

Section 6 of the Defamation Act extends the rules of qualified privilege to ‘peer-reviewed statements in scientific or academic journal’ if the following conditions are met:

1. the statement relates to scientific or academic matter; and
2. an independent peer-review of the statement’s scientific or academic merit was carried out by the editor of the journal and one or more experts.

Where the publication of the statement is privileged by virtue of section 6, ‘the publication of a fair and accurate copy of, extract from or summary of the statement or assessment is also privileged’ (s6(5)).

The section is aimed at facilitating academic debate and its introduction is likely due to a small number of cause célèbres which were influential in the campaigns surrounding the enactment of the new Act– though interestingly the new defence would not have been applicable in these cases. The defence can be defeated by malice (s6(6)).

The so-called Reynolds or ‘responsible journalism’ test is abolished by s4(6) of the Defamation Act 2013.

(4) Responsible publication on a matter of public interest

Section 4 of the Defamation Act 2013 introduces a new statutory defence of ‘publication on a matter of public interest’. It retains the requirement that the defamatory statement “was, or formed part of, a statement on a matter of public interest” (as established in Reynolds v Times Newspapers [2001]). However, it goes further than the Reynolds test, which required the defendant to show that they had acted responsibly (i.e. to the standard of responsible journalism) and requires the defendant to show they “reasonably believed that publishing the statement complained of was in the public interest” (s4(1)(b)).

The first case to consider this new defence in depth was Economou v de Freitas [2018].

(5) Offer of Amends
The common law position is unchanged by the Defamation Act 2013.

(5) Offer of Amends
The common law position is unchanged by the Defamation Act 2013.

See Monroe v Hopkins [2017].

(6) Innocent dissemination

A defendant who innocently disseminates a defamatory statement of another will not be liable if she did not know and had no reason to believe that the statement contained defamatory material. This was put on a statutory footing in s1 of the Defamation Act 1996.

(6) Innocent dissemination

Section 10 of Defamation Act 2013 also strengthens the position of “innocent disseminators”. A party who is not the author, editor or commercial publisher is protected from being sued for defamation unless it is not “reasonably practicable” to bring an action against the author, editor or commercial publisher.

Though it is unclear as yet how this affects common law liability in relation to foreseeable republication.

Operators of websites

A website operator will not be liable for defamatory statements posted on it by others provided they take them down when they are notified that they are defamatory (Tamiz v Google [2013])

Section 5 of the Defamation Act 2013 puts the common law on a statutory footing, in a new defence which provides that “where an action for defamation is brought against the operator of a website in respect of a statement posted on the website … It is a defence for the operator to show that it was not the operator who posted the statement on the website”.

However, the effect of this defence is limited by section 5(3) which states the defence does not apply if the claimant is able to show:
(a) it was not possible for the claimant to identify the person who posted the statement,
(b) the claimant gave the operator a notice of complaint in relation to the statement, and
(c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.

The Defamation (Operators of Websites) regulations 2013, which came into force in January 2014 set out the procedures which operators must follow if they wish to rely on this defence. In essence, these require the operator to either hand over the details of the poster to the complainant (with the poster’s consent) or to remove the offending publication within a stipulated timeframe.

The defence is also defeated by malice on the part of the operator (section 5(11)).

During the passage of the Defamation Act, it was stated that s10 does not apply to website operators as that would defeat the purpose of section 5.

Section 13 provides a new remedy so that when a court finds a given statement defamatory the court may order “the operator of a website on which the defamatory statement is posted” or “any person who was not the author, editor or published of the defamatory statement” to remove it or stop distributing it.

Section 11: Trial by jury

The tort of defamation was unusual in that there was a presumption that cases would be tried by a jury (under s 69 of the Senior Courts Act 1981 and section 66 of the County Courts Act 1984), ‘unless the court is of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot be conveniently made with a jury’.

Section 11 of the Defamation Act 2013 abolishes the presumption in favour of a jury trial. It leaves the courts a residual discretion to order a jury trial, but gives no guidance on when it might be appropriate to so order.

Section 9: Actions against a person not domiciled in the UK or a Member State etc.

Criticism of the supposed ease at which libel cases were brought by so-called ‘libel tourists’ was one of the main arguments in favour of law reform (Though, cf, Gavin Phillipson, ‘London: the capital of libel tourism?’ The Guardian 29 March 2010.).

Section 9 of the Defamation Act creates a new ‘threshold test’ for acceptance of jurisdiction in defamation cases by courts in England & Wales in cases against non-domiciled persons (i.e. persons not living in the UK, EU or in a Lugano Convention State).

In such cases, courts in England & Wales lack jurisdiction unless “satisfied that, of all the places in the world in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement” (s9(2)).