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Following the Defamation Act 2013 the rules and the way cases are handled are slightly different. From the defences being laid out in statutes (Acts of Parliament) and other parties’ involvements being acknowledged, by way of case law. The sections (different paragraphs highlighting different areas of the statute) all highlight different areas of defamation law.
The Defamation Act 2013 (also known as the 2013 Act) reforms its previous Acts, being the 1952 Defamation Act and the 1996 Defamation Act (the 52 Act and the 96 Act respectively) set out amendments to both these Acts, summarises and places common law (also known as case law) into statues and attempts to balance both article 8 (protection of reputation) and article 10 (freedom of expression) of the European Convention of Human Rights (ECHR). Throughout Sections 1-7, the 2013 Act aims to create a boundary of seriousness to be applied to statements which have been alleged as defamatory. Under Section 1 of the 2013 Act the provisions set out the boundary in which a statement, or such that forms one, becomes defamatory. S.1(1) says that Defamation only occurs when the publication of said statement has cause or it is likely, and reasonably foreseeable, to cause serious harm to the reputation of the Claimant. Similarly, under S.1(2) it states that if a defamatory statement has been published against a trading body then the trading body must prove that they have or are likely, reasonably foreseeable, to suffer severe economic loss. Section 1 puts the common law of Thorton v Telegraph Media Group LTD (TMG LTD) (No 2) [2010] EWHC 1414 into an easier to follow statute.
Under Sections 2-7 the 2013 Act provides defences for the Defamation cases. Some put common law precedents into statute and others introduced new defences all together.
Section 2 sets out the defence of truth. S.2(1) provides a new defence for Defamation. Previously, a precedent was set out in Chase v News Groups Newspapers LTD [2002] EWCA Civ 1772 at para 34, in which the Court of Appeal said the defendant does not have to prove that every word was true, but the essential or substantial meaning of the published statement was truthful. If the truth is raised in question then 2 issues arise with it. What implements are conveyed by the statement and whether the implements are substantially true. As Defamation relies on the fact that the claimant is suffering severe damage to their reputation based on an untrue published statement, being permanent or spoken (libel and slander respectfully), if the published statement is proven true then the case of Defamation fails. Section 2 helps solidify the right of freedom of expression, under article 10, as it respects that some truths may hurt the reputation of a body.
As follows, Section 3 of the 2013 Act replaces the common law defence of ‘fair comment’ with the new statute named ‘honest opinion’. Subsections 1-4 of Section 3 provide 3 conditions for the statement to meet to be portrayed as an ‘honest opinion’. 1: the statement complained of was an opinion; 2: the statement complained of indicated the basis of the opinion; 3: that an honest person could come to the same opinion on the basis of any facts which existed at the time the complained of statement was published. Both subsections 1 and 2 look to clarify that the complaint of the statement was, in fact, an opinion of the defendant and not a statement allegedly portraying fact. On the third subsection, the Court looks to an objective element (when a defendant is held to the standard of someone else) in which the defendant would have to prove that an ‘honest’ person, someone who follows the moral standards of society and acts of that as a reasonably ‘decent person’, would be able to come to the same conclusion based on any facts that had existed at the same time the original complained statement was published. Section 3 also helps to balance article 10 of the ECHR, the freedom of expression, with article 8, the protection of reputation, through the steps taken to see if the defendant can satisfy the defence of ‘honest opinion’ as it highlights that the statement published was in fact an opinion and that an ‘honest’ person would come to the same bias based on the same facts available at the time.
Finally, Section 11 of the 2013 Act allows for the removal of juries for Defamation cases. S.69 of the Senior Courts Act 81 and S.66 of the County Courts Act 84 both provide the right to a trial by jury in certain civil proceedings. Unless the Court contains any prolonged examinations of documents or accounts which cannot efficiently be made with a jury. S11.1 and S11.2 respectively amend both the 81 and 84 Acts effectively removing libel and slander from the list of proceedings where a right to a jury trial is given. Section 11 offers a balance for Section 8, protection of reputation, as if a publicly important person has been defamed then Section 11 allows for their reputation to be protected as a jury may find prejudice and or spread the Defamation. On the other hand, Section 4 plays a role in public importance.
Section 4 focuses on the defence of public importance, deriving from the common law defence of Reynolds v Times newspapers [2001] 2 AC 127. S4.1 allows the defendant to show that the statement was formed based on a matter of public interest. There is both a subjective and objective element to Section 4. Although, Section 4 does not define what the public interest is, it is a well-known phrase used in English Common Law. Section 4 is used as when a case of public importance arises although the defendant has a right to protection of reputation, the importance to the public and future cases may outweigh that right.
The 2013 Act creates a more than valid attempt to balance both articles of the ECHR, 8 and 10, while also delivering a fair system in which we can use against Defamation. The statute law now has set rules and trackways to follow when resolving a Defamation case instead of common law defences and precedents which, in theory, can be open to interpretation and can cause an issue that trickles down future cases.
By Michael Brennan, who is a student at the Island VI form
