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Section 1 of the Defamation Act

“RAISING THE BAR”

TIMOTHY ATKINSON

Copyright 2013 One Brick Court - All Rights Reserved Slide:

Section 1 – “Serious Harm”

Serious Harm:

1) A statement is not defamatory unless its publication has caused or is likely

to cause serious harm to the reputation of the claimant

2) For the purposes of this section, harm to the reputation of a body that

trades for profit is not “serious harm” unless it has caused or is likely to

cause the body serious financial loss

2


The Role of the Explanatory Notes

• The Explanatory Notes are relevant to the interpretation of the Act, but there are

limits to their use

– They are not part of the Act

– They have not been endorsed by Parliament

– They are admissible aids to construction (even where there is no ambiguity)

insofar as they cast light on the objective setting or contextual scene of the

statute and the mischief at which it is aimed. It is not permissible however to

treat the wishes of the Government about the scope of statutory language

as reflecting the will of parliament – Westminster City Council v National

Asylum Support Service [2002] UKHL 38

3


What the Explanatory Notes Say

Section 1: Serious harm

10. Subsection (1) of this section provides 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 provision extends to

situations where publication is likely to cause serious harm in order to cover situations where the harm

has not yet occurred at the time the action for defamation is commenced. Subsection (2) indicates that

for the purposes of the section, harm to the reputation of a body that trades for profit is not “serious

harm” unless it has caused or is likely to cause the body serious financial loss

11. The section builds on the consideration given by the courts in a series of cases to the question of what is

sufficient to establish that a statement is defamatory. A recent example is Thornton v Telegraph Media

Group Ltd [2010] EWHC 1414 in which a decision of the House of Lords in Sim v Stretch [1936] 2 All ER

1237 was identified as authority for the existence of a “threshold of seriousness” in what is defamatory.

There is also currently potential for trivial cases to be struck out on the basis that they are an abuse of

process because so little is at stake. In Jameel v Dow Jones & Co [2005] EWCA Civ 75 it was

established that there needs to be a real and substantial tort. The section raises the bar for bringing a

claim so that only cases involving serious harm to the claimant‟s reputation can be brought

12. Subsection (2) reflects the fact that bodies trading for profit are already prevented from claiming

damages for certain types of harm such as injury to feelings, and are in practice likely to have to show

actual or likely financial loss. The requirement that this be serious is consistent with the new serious

harm test in subsection (1)

4


Key Points From Explanatory Notes

• Explanatory Notes for this section at least appear to be helpful

• Section 1 “builds upon” the cases which have considered what is sufficient to

establish whether a statement is defamatory - e.g. Thornton v Telegraph

Media Group Ltd [2010] EWHC 1414 (QB). Also an express reference to

Jameel type cases where there is little at stake

• Significantly, the notes expressly state that the section “raises the bar” for

bringing a claim so that only cases involving serious reputational harm can

be brought

• “likely to cause serious harm” is said to be intended to cover a situation

where the harm has not yet occurred at the time when the action is

commenced

5


Comprehensive Definition or Extra Requirement?

• Appears not a new all encompassing definition of defamatory but an extra requirement

a) The common law threshold of defamatory identified in Thornton – an imputation

tending to cause substantial (i.e. non-trivial) harm to reputation of the claimant:

“The law does not provide remedies for inconsequential statements, that is, of

trivial content or import. It is necessary that there should be some threshold test

of seriousness to avoid normal social banter or discourtesy ending up in

litigation and to avoid interfering with the right to freedom of expression

conferred by article 10 of the European Convention on Human Rights.” -

Cammish v Hughes [2012] EWCA Civ 1655 per Arden LJ at [38]

b) An additional (?) requirement that the publication has caused or is likely to cause

serious harm to the claimant‟s reputation

6


“Likely to Cause Serious Harm” in s.1(1)

• An important question will be whether this is equivalent to “the statement has a tendency to cause serious harm”

• It is likely to be argued by a defendant that (a) the Government has rejected a „tendency test‟ (b) the intention of

Parliament is that the court should look at the reality of the situation in all the circumstances (c) the section, properly

construed, is concerned with the effect of the publication not merely the nature of the statement and (d) as a matter of

construction a „tendency‟ test would sit uneasily with the reference in section 1(1) to actual serious harm having been

caused and (e) the Explanatory Notes support this

• On the other hand, a claimant may point to the fact that (a) the preferred definition in Thornton itself includes both actual

reputational harm and a tendency to cause it, (b) the section „builds upon‟ Thornton, (c) the „tendency test‟ strikes a fair

balance between the claimant and defendant as Parliament must have intended.

• Said by the Explanatory Notes to cover situations where serious harm has not yet occurred at the time when the action

is commenced

• Does it cover repetitions likely to be caused by the publication which are likely to cause serious harm in the future, either

because of the likely scale of repetition or the likely nature of the publishees? Or where the claimant‟s circumstances

are about to change so that the publication is likely to cause serious harm? Does this have to be foreseeable at the time

of publication?

• Does “likely” mean “more likely than not” as opposed to some other level of likelihood?

7


What Might the Court Consider in Regard to s.1?

• Criticalbutrealistic analysis of whether, in all the circumstances of the case, serious

harm to reputation (not feelings) has actually been caused or is likely to be caused so

as to decide whether the statement is defamatory at all. In some cases may a claimant

be able to prove this by relying on inference without evidence of harm e.g. very grave

allegation in a national newspaper?

• This would seem to entail an important change in the law, since it will involve

consideration of whether the statement is defamatory at all by reference to matters

which up to now have only been relevant to damages or a Jameel argument e.g. lack

of belief in the statement by publishees may mean that the statement is not

defamatory at all. It seems to follow that the same statement may be defamatory when

published to one person but not to another

8


What Might the Court Consider in Regard to s.1? (contd.)

• What might the court consider as part of all the circumstances? Among other things:

a) The degree of seriousness of the imputation(s) conveyed by the statement including considering the nature of

the statement, its tone (jokey or mere abuse), fact or comment, relationship to the claimant‟s position, setting in

which it was published etc.

b) Does the statement only identify the claimant to those with special knowledge?

c) Is the meaning only an innuendo one?

d) The nature of the publishees and their relationship to the claimant

e) The number of publishees

f) The reaction or likely reaction of publishees (including actual or likely financial loss)

g) A claimant‟s background or pre-existing reputation (including convictions). But what if pre-existing reputation

caused by similar previous statements?

h) „Burstein‟- type particulars (insofar as they go to effect on reputation)

i) Is the statement partially true?

j) Has there been a rapid correction?

• Serious is a higher bar than substantial – seems to be intended to be a „bit‟ higher. However the distinction is not yet

certain – certainly less clear than the distinction between substantial and trivial

9


A Residual Role for Jameel Applications? Non-exhaustive list

• Is there a residual role for a Jameel application? Possibly in a Cammish-type situation

i.e. serious harm has been caused, so that the statement is defamatory under section

1, but because of vindication in the course of proceedings etc, it is not “worth the

candle” for the action to continue

• Section 1 does not deal with costs and use of court time i.e. disproportionality.

However, if the claimant has otherwise satisfied the high requirement of serious harm,

and there is some real point to the action continuing, should the courts treat any

Jameel argument based simply on the relative modesty of likely damages compared

with legal costs/court time with even more scepticism?

• Matters going simply to injury to the claimant‟s feelings which are relevant to e.g. the

level of likely damages

10


Section 1(2): Bodies Trading for Profit

• Section 1 (2) relates to what is required for reputational harm to be „serious harm‟ in the case of a „body that trades

for profit‟

• Not intended by the Government to catch charities which happen to engage in activities that involve making a profit

• Does „likely‟ here mean „more likely than not‟? What does „likely to cause‟ mean in the context of this section?

Tendency of the words? Or actually likely to occur in all the circumstances?

• In some cases, even if it means actually likely to occur, the nature of the statement combined with the circumstances

of publication may be enough to raise inference of likely serious financial loss

• In other cases may need detailed Tesla-style particulars

• Defendants are likely to rely on absence of any proven financial loss or serious financial loss over time, and/or any

correction and/or court vindication, in order to contend that there is no likelihood of serious financial loss

• Could produce injustice where a body cannot prove serious financial loss has occurred and a correction or court

vindication means it is not likely – with the result that the statement is not to be treated as defamatory at all. Possible

ways round this? (a) „likely‟ means „tendency of statement‟ (b) construe so as to disregard correction or vindication.

But is that what Parliament intended? Did it, rather, have in mind the reality of the situation?

11


Section 1(2): Bodies Trading for Profit (contd.)

• Ironically, it may be the „big‟ bodies rather than the „small fry‟ who are able to afford the time

and cost of assembling the required evidence and/or to spend serious money on mitigation

which may then possibly be relied on as „financial loss‟. This does not appear to be a result

intended by Parliament

• Depending on the facts, an individual(s) connected to the body may be able to sue, if they are

referred to. Alternatively, if malice can be proved, depending on what „likely to cause‟ means in

s.1(2), there may be an advantage in suing in malicious falsehood

• Since defamation claims by these bodies will involve a requirement of actual or likely serious

financial loss and so be more similar to a malicious falsehood claim, does this have any

implications for the single meaning rule? Even if arguable, is this practically likely, given the

Court of Appeal has said that the rule is for Parliament to deal with and the Act does not

address this?

12


Financial Loss

What constitutes „financial loss‟ for the purposes of section 1?

• Loss of custom or sales, or a general decline in business appear to suffice, although they may be

difficult to establish on the facts

• Do expenses incurred in mitigation or other expenditure incurred in dealing with the consequences

of the publication constitute „financial loss‟? If so, it would make claims much easier to bring. Is this

consistent with Parliament‟s apparent intention of „raising the bar‟?

• Other forms of possible financial loss: e.g. injury to goodwill. What does „goodwill‟ mean in this

context? Not merely a trading reputation (i.e. the body‟s „good name‟) as this would appear to defeat

the point of section 1(2)? But what about goodwill as an intangible but quantifiable asset identified in

the accounts? How does injury to this asset translate into concrete financial loss? Is it loss by the

body rather than the shareholders? Similarly, what about a drop in share price? The Minister

suggested this could be enough. But is that the body‟s loss? In any event, will the court be able

satisfactorily to assess whether the fall in value of goodwill is „serious‟, assuming this cannot be

inferred on the facts?

• Is the seriousness of the loss to be judged relative to the claimant‟s means or in absolute terms?

13


Some Practical Consequences of the New Section

• CPR 53 seems now outdated in light of changes under the Act

• Possible new procedure to enable early resolution of actual meaning, fact or comment

and whether defamatory in light of section 1

• Not clear what test will be applied at this early stage: query whether it will be equivalent

to CPR 24 or a determination as a preliminary issue or some other test. Will the court

necessarily have enough evidence on eg. financial loss at an early stage?

• Parties may need to engage in significant evidence gathering and preparation of

evidence to determine likelihood and degree of harm – frontloading of costs and the

potential for

a „mini-trial‟

• Certainly there is plenty of room for argument over key aspects of this section

14


Section 2 and 4 of the Defamation Act

ANDREW CALDECOTT QC

CLARE KISSIN

“THE NEW DEFENCES OF „TRUTH‟ (S.2) AND „PUBLICATION ON

MATTER OF PUBLIC INTEREST‟ (S.4)”


S.2: Truth

16


The Current Approach: The Common Law Rules of Justification

a) A single charge must be proved to be substantially true

b) Multiple charges: the common sting rule: what you can justify outside of the

complaint - Polly Peck Holdings v Trelford [1986] QB 1000

c) Multiple charges: the severable meaning rule: what you cannot justify

outside of the complaint - Cruise v Express Newspapers Plc [1999] QB 931

d) The repetition rule: Shah v Chartered Bank [1999] QB 241

e) The conduct rule: King v Telegraph Group [2004] EMLR 429

f) The proportionality check: McPhilemy v Times Newspapers Ltd [1999] 3 All

ER 775; Polly Peck Holdings

17


The Current Approach: Justification in Statute

s.5 Defamation Act 1952:

“In an action for libel or slander in respect of words containing two or more

distinct charges against the plaintiff, a defence of justification shall not fail by

reason only that the truth of every charge is not proved if the words not proved

to be true do not materially injure the plaintiff‟s reputation having regard to the

truth of the

remaining charges.”

18


The New Regime: „Truth‟

19

Found in the Defamation Act 2013 Missing?

(a) A single charge must be proved to be

substantially true

(b) Multiple charges: The common

sting rule

(d) The repetition rule (c) Multiple charges: The severable

meaning rule

A version of s.5 DA 1952 (e) The conduct rule

(f) The proportionality check


The New Regime: The Abolition of All That Came Before

Explanatory Note 18:

“Subsection (4) abolishes the common law defence of justification and repeals

section 5 of the 1952 Act. This means that where a defendant wishes to rely on

the new statutory defence the court would be required to apply the words used

in the statute, not the current case law. In cases where uncertainty arises the

current case law would constitute a helpful but not binding guide to interpreting

how the new statutory defence should be applied.” (emphasis added)

20


The New Regime: What Else Survives?

21

• Procedural vs substantive rules?

• Proportionality rules?

• The rule in Bonnard v Perryman?

• Current pleading practice? Note the new wording of “the imputation conveyed

by the statement” rather than the allegation complained of

• The blue pencil issue from Polly Peck: “I do not think that a plaintiff is permitted

to use a blue pencil upon words published of him so as to change their meaning

and then prevent the defendant from justifying the words in their unexpurgated

form”

• Approach to a single statement with severable charges?


s.4: Publication on a Matter of Public Interest

22


The Current Approach: Reynolds, Jameel & Flood

23

• A widening of the „traditional‟ common law qualified privilege

• “...Reynolds privilege protects publication of defamatory matter to the world at large where

(i) it was in the public interest that the information should be published and (ii) the publisher

had acted responsibly in publishing the information, a test usually referred to as

„responsible journalism‟ although Reynolds privilege is not limited to publications made by

the media” (Lord Phillips, Flood v TNL [2012] UKSC 11)

• “In deciding whether Reynolds privilege attaches (whether the Reynolds public interest

defence lies) the judge, on true analysis, is deciding but a single question: could whoever

published the defamation, given whatever they knew (and did not know) and whatever they

had done (and had not done) to guard so far as possible against the publication of untrue

defamatory material, properly have considered the publication in question to be in the

public interest?” (Lord Brown in Flood, emphasis added)


The Current Approach: Reynolds, Jameel & Flood (contd.)

24

• In the public interest:

– Is the subject matter of the article a matter of public interest? If so, does the defamatory statement contribute to that public interest element? (see Lord Hoffmann in Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359)

– The important role of editorial discretion

• Publisher acted responsibly:

– The Reynolds checklist: “Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. 1.The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subject matter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff's side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing. (Reynolds v Times Newspapers Ltd [2002] 2 AC 127


The Current Approach: Reportage

25

• “Reportage is a special, and relatively rare, form of Reynolds privilege. It arises

where it is not the content of a reported allegation that is of public interest, but

the fact that the allegation has been made. It protects the publisher if he has

taken proper steps to verify the making of the allegation and provided that he

does not adopt it....

• ...The position is quite different where the public interest in the allegation that is

reported lies in its content. In such a case the public interest in learning of the

allegation lies in the fact that it is, or may be, true. It is in this situation that the

responsible journalist must give consideration to the likelihood that the allegation

is true. Reynolds privilege absolves the publisher from the need to justify his

defamatory publication, but the privilege will normally only be earned where the

publisher has taken reasonable steps to satisfy himself that the allegation is true

before he publishes it” (Flood v TNL [2012] UKSC 11


The New Approach Under s.4

26

• The common law defence known as Reynolds is abolished (s.4(6)

• The new defence under subsection (1) requires the defendant to show the

statement complained of was, or was part of a statement on a matter of public

interest and:

– The subjective element: a belief that the publication was in the

public interest

– The objective element: that the belief is reasonable

• Reportage is defined in s.4(3) and limited to “accurate and impartial” accounts of

a “dispute to which the claimant was a party”, which also satisfy subsection (1)


Key Issues

27

• “Reasonable” belief publishing is in public interest vs “responsible” publication

• The core importance of the publisher‟s evidence

• How to address legal advice privilege?

• What role editorial judgment? - “such allowance as it considers appropriate”

(s.4(5))

• The Reynolds checklist vs “all the circumstances of the case” (s.4(2))

• Defining the limits of reportage

• Traditional common law qualified privilege (outside Reynolds) is untouched



“HONEST OPINION” Some Unanswered Questions

RICHARD RAMPTON QC

JONATHAN SCHERBEL-BALL


Introduction

• Detailed Explanatory Notes on the interpretation of this section. In this

instance, they may raise more questions than answers.

• Explanatory Notes state that section 3 “broadly reflects the current law while

simplifying and clarifying certain elements, but does not include the current

requirements for the opinion to be on a matter of public interest”.

• It is those “simplifications” and “clarifications” in the section which are likely to

pose challenging questions.

• Important to note that section 3(8) expressly abolishes the common law

defence of fair comment.

29


The First Condition

Section 3(2). The first condition the defendant must fulfil is that:

“…the statement complained of was a statement of opinion” (emphasis added)

This leads to two questions:

i. Who will determine what the statement complained of was (is)? Is that an objective or a

subjective question?

– This is essentially a question of meaning which the court will decide, applying the single

meaning test, which is objective

ii. Who will determine whether that statement was a statement of opinion (as opposed,

presumably, to a statement of fact)? Is that an objective or a subjective question?

– In consequence of (i), and despite the use of the past tense, it is likely that the court must

also decide this second question (essentially “fact or opinion”?), basing itself on its finding

as to what “the statement complained of” is? Again, this is an objective question

30


The Second Condition

Section 3(3). The second condition the defendant must fulfil is that:

“the statement complained of indicated, whether in general or specific

terms, the basis of the opinion” (emphasis added)

• The basis of the opinion is presumably either “the factual basis” or “the

subject-matter” although paragraph 22 of the Explanatory Notes suggests

that “factual basis” is what is meant

31


The Third Condition – “Any Fact”

Section 3(4). The third condition actually contains two (alternative) conditions, viz:

(a) “That an honest person could have held the opinion on the basis of… any fact which existed at the time the

statement complained of was published”.

• What is meant by “any fact”? If it means what it says, then there will be no room for the application of the common

law rule that the fact(s) relied on by the defendant in support of his opinion must be viewed in the light of such other

facts as may show that no honest person could have held the opinion in question on the basis of the full facts – e.g.

Branson v Bower (No 2) [2002] QB 737

• Paragraph 23 of the Explanatory Notes states that “the existing case law on the sufficiency of the factual basis is

covered by the requirement that “an honest person” must have been able to hold the opinion. If the fact was not a

sufficient basis for the opinion, an honest person would not have been able to hold it.” However this is circular, as

the sentence which immediately precedes it makes clear that “any relevant fact or facts” (emphasis added) will be

sufficient as the basis for the honest person‟s opinion, which takes one back to the wording of the subsection

• Although proof that a defendant knew the facts that undermined or destroyed the factual basis on which he relied in

support of his defence might well result in a finding under s.3(5) that s/he did not honestly hold the opinion he

expressed, this is not certain, and in any case does not accommodate the defendant who did know those facts, and

who may in consequence have a good defence based on a single fact

• If this analysis is correct, it represents a radical departure from the position as it was under the common law

32


The Third Condition – Privileged Statements

Alternatively, condition 3(4)(b):

“That an honest person could have held the opinion on the basis of…anything asserted to be a fact in a privileged

statement published before the statement complained of.”

• What does “anything asserted to be a fact in a privileged statement” mean? Does the assertion that the “thing” is a

fact have to appear in the privileged statement or can it be an assertion by the defendant in the publication

complained of. Probably the former, but the language does not entirely exclude the latter

• What does “published before the statement complained of” mean? How does this impact upon a publication that

contains simultaneously unpublished material which is privileged and also defamatory opinions based upon that

material?

• This difficulty is compounded by the fact that the common law defence of fair comment is abolished by section 3(8).

This has the result that reliance on privileged statements as the basis of opinion is now confined to the categories of

statutory privilege specified by section 3(7). In consequence, there are many kinds of statements that are privileged

at common law, but not by statute, which cannot now be used as the basis for an opinion, unless they are proved to

be true

33



“OPERATORS OF WEBSITES”

JANE PHILLIPS, CATRIN EVANS

HANNAH READY


Introduction to Section 5

• Section 5 of the Act introduces a completely new defence to defamation

claims available to website operators who follow a specific procedure to be

set out in “Regulations”

• Draft Regulations have been issued

• The Ministry of Justice apparently finished consulting on the Guidance and

FAQs which accompany the draft Regulations at the end of August

• It is believed that the Regulations will be laid before Parliament in the

Autumn. The following is based on the Draft Regulations

35


Overview

• The section applies where “an action for defamation is brought against the

operator of a website in respect of a statement posted on the website”: 5(1)

• It provides a defence to “operators” if “it was not the operator who posted the

statement on the website”: 5(2)

• If a statement posted on the operator‟s website is made by an identifiable author

(ie. someone who the Claimant has sufficient information to bring defamation

proceedings against) the defence is unconditional, and can only be defeated if

the Claimant can prove that the operator has acted with malice: 5(3)(a), 5(4)

and 5(11)

• If the author is unidentifiable, the defence is conditional upon compliance with

the Regulations: 5(3), 5(5), 5(6)

30


The Procedure

• Under the procedure a complainant is required to send a Notice of Complaint to the

website operator containing prescribed information including:

– The complainant‟s name: 5(6)(a)

– The complainant‟s email address: Reg. 2(a)

– The statement complained of: 5(6)(b)

– The location of the statement complained of on the website (usually the URL): 5(6)(c)

– Why it is said to be defamatory of the complainant: 5(6)(b)

– What defamatory meaning the complainant ascribes to the statement complained of:

Reg. 2(b)

– In what respects the complainant believes that the statement is factually inaccurate or

opinions not supported by facts: 5(3)(b), 5(6) and para. 2 of the Regs

31


The Procedure (contd.)

• The complainant must also confirm:

– That he “does not have sufficient information about the poster to bring

proceedings against that person”: Reg 2(d)

“Sufficient information” is not defined in the Act or the Regs. Although

the Guidance notes give the example of the poster‟s name and

postal address

– Whether he consents to the operator providing the complainant‟s name and

email address to the poster

The complainant does not have to consent to this and if he does not,

the operator must redact the information from the Notice of Complaint

before he sends it to the poster: see para. 14 of the Guidance notes

and Answer 23 of the FAQ‟s

38


The Website Operator

• The website operator is to communicate the position to the poster (if it has

the means to do so), who then has a chance to reply and provide their

contact details. Having complied with the procedure, the website operator

can avail itself of the defence under s. 5, regardless of the position as

between the complainant and the poster

• S. 5 has drawn comparisons with the existing defences for website

operators under the E-Commerce Regulations, and it will be interesting to

see how the two defences will interact

39


The Notice of Complaint

Dear Sir,

[THIS SHOULD BE SENT TO THE OPERATOR OF THE WEBSITE ON WHICH

THE POSTING HAS BEEN PUBLISHED]

We act on behalf of John Smith, the well-known radio and television presenter, who

can be contacted through us at the following email address: [email protected]

[THE NOTICE MUST IDENTIFY THE NAME OF THE COMPLAINANT AND AN

EMAIL ADDRESS WHERE HE/SHE CAN BE CONTACTED]

Re: the anonymous postings on your website at URL: www.xxx.com

[THIS SHOULD IDENTIFY WHERE ON THE WEBSITE THE STATEMENTS

COMPLAINED OF WERE PUBLISHED. IDEALLY, BY PROVIDING THE UNIFORM

RESOURCE LOCATOR (URL)]

40


The Statements

The statements complained of

• On 1 October 2013, a person posting under the pseudonym “Truthteller” published the

following three separate statements on your website, all of which are defamatory of

our client

– “John Smith is a prat!” [www.xxx1.com]

– “There's something you should all also know about John Smith - he's a convicted

paedophile.” [www.xxx2.com]

– “Just so everyone knows, John Smith has recently been forced to settle his libel claim

against a newspaper that said terrible things about him for no money... what does that

tell you!” [www.xxx3.com]

[THE STATEMENTS COMPLAINED OF SHOULD BE IDENTIFIED IN TERMS AND

WITH THEIR INDIVIDUAL URL]

41


Defamatory?

• Each of these statements is clearly defamatory of our client and has caused our client

serious harm to his hard-earned reputation as a much-loved presenter. Moreover, they are

likely to cause further harm to our client‟s reputation the longer they are left up on your

website. Anyone reading these statements about our client, either separately or together,

would be left in no doubt that no-one should associate with our client, given his appalling

criminal behaviour. Our client has already been contacted by one of his employers requiring

his explanation for these posts

[THE COMPLAINANT IS REQUIRED TO STATE WHY HE CONSIDERS THE STATEMENT TO

BE DEFAMATORY OF HIM. THE NOTES STATE THAT “BROADLY SPEAKING THE

COMPLAINANT SHOULD FOCUS ON EXPLAINING THE HARM THAT THE STATEMENT

HAS CAUSED OR IS LIKELY TO CAUSE TO HIS OR HER REPUTATION, BEARING IN MIND

THE SERIOUS HARM THRESHOLD IN SECTION 1 OF THE ACT]

42


The First Statement

• Defamatory meaning and inaccuracies

– The first statement means that our client is a prat or a fool. He is not, nor (if, which is

denied, this is held to be an expression of opinion) are there any grounds at all to

support such an opinion

[THE COMPLAINANT MUST SET OUT THE DEFAMATORY MEANING WHICH HE SAYS THE

STATEMENTS BEAR AND WHY THEY ARE FACTUALLY INACCURATE OR OPINIONS NOT

SUPPORTED BY FACT. THIS IS SAID TO BE IN ORDER THAT THE POSTER CAN ASSESS

WHETHER OR NOT THE STATEMENT IS OR MIGHT BE DEFAMATORY AND TO REACH AN

INFORMED DECISION ON HOW TO RESPOND. THE NOTES ALSO STATE THAT DETAILED

EVIDENCE NEED NOT BE PROVIDED TO SUPPORT HIS POSITION]

This paves the way for the operator to deny that the words complained of are defamatory of the

complainant and/or bear this defamatory meaning

43


The Second Statement

• The second statement clearly means that our client is a convicted paedophile

and is therefore guilty of one of the most heinous of all criminal offences. This

is completely untrue. Our client is not a paedophile, nor has he ever been

convicted of being a paedophile. In fact, our client has never been convicted

of any

offence at all

[THE COMPLAINANT NEED NOT PROVIDE DETAILED INFORMATION TO

SUPPORT HIS POSITION AS THIS WOULD BE A MATTER FOR

SUBSEQUENT LEGAL PROCEEDINGS]

44


The Third Statement

• The third statement clearly means that there was, or there were reasonable grounds to

suspect that there was, some truth in the terrible things that a newspaper had said

about our client, requiring him to settle his libel action against the newspaper on very

unfavourable terms, including no payment of damages or costs

• As the terms of our client‟s settlement of his libel action against the Daily Rag are

confidential, we are unable to provide further information on this at the moment. We

have written to the newspaper to ask for a limited release from the confidentiality

clause in order to provide you with a full response on this issue

This is intended to hint at the fact that but for the confidentiality clause the complainant

would be able to tell them that this was untrue

45


The Poster

• Unfortunately, given the fact that the person posting the statements complained

of has chosen to hide behind a pseudonym (and one which reinforces the

defamatory meaning of the words complained of), we and our client have been

unable to trace him or her in order to commence proceedings for libel against him

or her. The poster‟s name and/or email address and/or postal address are not

identifiable from his or her postings

[THE COMPLAINANT MUST CONFIRM THAT HE DOES NOT HAVE SUFFICIENT

INFORMATION ABOUT THE POSTER TO BRING PROCEEDINGS AGAINST

THAT PERSON. ALTHOUGH AT THIS STAGE THE COMPLAINANT NEED NOT

SPECIFY THE STEPS TAKEN TO IDENTIFY THE POSTER, THESE STEPS MAY

BECOME RELEVANT IF PROCEEDINGS FOLLOW AN OPERATOR‟S FAILURE

TO COMPLY WITH THE PROCESS]

46


And Finally…

• Accordingly, our client requires you to remove the statements complained of

from your website immediately as every moment they remain available to the

public, our client‟s reputation suffers even more harm

• Our client consents to his name and the email address provided above to be

released by you to the poster

[THE NOTES STATE THAT A COMPLAINANT MAY NOT WISH HIS DETAILS

TO BE PROVIDED TO THE POSTER. THERE IS OFTEN A LEGITIMATE

CONCERN IN RELEASING ANY NAME OR EMAIL ADDRESS TO THE

POSTER IN A CASE SUCH AS THIS AS HE MAY USE IT TO FURTHER

HARASS THE COMPLAINANT]

47


The Operator‟s Response

• The operator will have the following options on receiving a valid notice:

1) It can follow the steps in the Schedule to the 2013 Regulations and rely on the s.5

defence

2) It can ignore the s.5 notice procedure and, if sued as liable for publication, try to

defend, probably on the following common bases:

E.g. that the statement is not defamatory – such as the first statement complained

of by John Smith; and/or the complaint may be a Jameel abuse;

and/or on its face the statement is defamatory – such as the third statement of

John Smith - but insufficient information has been provided to enable the operator

to adjudge whether the poster may have a defence, such as truth, and it can seek

to rely on Reg. 19 of the Electronic Commerce (EC Directive) Regulations 2002; or

other defences e.g s.1 of the 1996 Act

48


(1) Establishing a s.5 Defence Under the Schedule

• The operator must first take the following steps on receipt of a valid notice of complaint

(para 1 of the Schedule to the Regulations):

– Within 48 hours of receipt the operator must send to the poster a notification in writing (email would

suffice) that contains the following: a copy of the complaint (redacting information that could identify

the complainant where he has requested this); notice that the statement complained of may be

removed unless the operator receives a written response from the poster which must include:

Clarification as to whether the poster does or does not wish the statement to be removed;

If the poster does not wish it to be removed, his name and postal address; (the purpose of this

is to facilitate if possible direct resolution between the complainant and poster); and

An indication as to whether the poster consents to his contact details being sent by the operator

to the complainant

• Note that the operator must also notify the poster that if the poster does not consent to this the operator

will not disclose them unless ordered to do so by the court

43


(1) Establishing the Defence (contd.)

• To qualify for the s.5 defence the operator must notify the complainant within

48 hours of receipt of his complaint that it has received his notice and notified

the poster in accordance with the above requirements

• Where the operator has no means of contacting the poster these

requirements do not apply and the operator must within 48 hours of receiving

the complaint remove the statement (Reg 2(1)). The operator is only to be

treated as having the means if they include access to the poster‟s private

electronic messaging

(Reg 2(2))

50


The Response of the Poster

• Depending on the poster‟s response to the complaint, the operator may or may not have to

take the statement complained of down in order to avail itself of the s.5 defence

• The poster must respond in writing by midnight at the end of the 5th day after the day on

which the notification was sent (para 1(1)(b)(i) of the Schedule). Potential difficulty in extra-

jurisdictional situations

• The Regulations envisage 5 potential sequences of events arising from posters‟ responses,

although not all possible outcomes are covered and it seems unlikely that in practice all

posters‟ responses would fit into neat categories. E.g. it does not address the impact on the

s.5 defence of the poster himself removing or editing the statement

• If the operator fulfills the applicable requirements in the Schedule it will have a s.5 defence,

including those who moderate comments (s.5(12))

51


(a) Poster Fails to Reply within Time

• If the poster does not reply within time the operator must do the following to have

a defence:

– Within 48 hours of the end of the period specified for replying remove the

statement from the specified locations on the website; and

– Inform the complainant in writing that it has been removed. (para 4 of the

Schedule)

– The poster may be pursued by the complainant for damages, initially e.g. via

the Norwich Pharmacal route

52


(b) Poster Does Not Provide All Required Information

• If the poster does not provide information as to whether (a) he wishes the statement to be left up or

taken down and, (b) if the latter, his contact details and (c) whether he consents to them being

passed to the complainant, then in order to rely on the s.5 defence the operator must remove the

statement from the specified locations within 48 hours of receipt of the poster‟s response. (para 5

of the Schedule)

• The operator must also notify the complainant in writing that the statement has been removed

• The operator must also remove the statement if it considers that the name and address provided by

the poster are “obviously false” (para 5(3) of the Schedule)

• The test is whether a reasonable website operator would consider it obviously false. Other than

where the name of someone very famous is provided or the address for example of “10 Downing

St” it is hard to see how this could be satisfied

• The poster may face a separate action for damages by the complainant, via Norwich Pharmacal

proceedings against the operator

53


(c) Poster Agrees to Statement Being Removed

• Where the poster responds within time and states his agreement to the

statement complained of being removed, within 48 hours of receipt of the

poster‟s response the operator must, in order to avail itself of the defence,

remove the statement and notify the complainant in writing (para 6 of the

Schedule)

• In this scenario the poster does not have to provide his name or contact

details to the operator (even though the operator may already have them, if

for example it is a blog site operator)

• The complainant may however seek a Norwich Pharmacal order for

information as to the poster‟s identity and then pursue him for damages

54


(d) Poster Objects to Statement Being Removed/Consents to Name Being Disclosed

• If the poster does not agree to the statement being removed but provides

and consents to his name and contact details being provided to the

complainant (possibly the least likely scenario) – then the operator will have

a s.5 defence – and need not remove the statement - as long as it notifies

the complainant in writing within 48 hours that the statement has not been

removed and the poster does not agree to it being removed (para 7 of the

Schedule)

• The notice must also provide the poster‟s contact details to the complainant

• The complainant can then deal directly with the poster

55


(e) Poster Objects to Statement Being Removed and Name Being Disclosed

• Where the poster objects to the removal of the statement and disclosure of

his contact details the operator is not obliged to remove the statement and

will have a defence if it provides the information to the complainant in (d)

above save for contact details. It must be made clear that the poster does not

consent to his contact details being disclosed (para 7 of the Schedule)

• The complainant may then apply for Norwich Pharmacal relief for evidence

as to the poster‟s identity

56


What If the Poster Removes It Himself?

• Can the operator still rely on s.5 if the poster himself removes or edits the statement after

notification from the complainant has been received by the operator, or after the operator

serves notice on the poster?

• The Schedule 1 scenarios unhelpfully do not allow for this. But it would seem counter to the

purpose of the section if an operator could not rely on the defence because the poster rather

than the operator did the very thing the section is geared towards achieving

• It is difficult to see what else could be achieved by the complainant with the operator‟s help.

i.e The Govt‟s intention was apparently to facilitate the resolution of disputes directly

between complainant and poster. And the Schedule provides that where a poster agrees to

removal by the operator the poster need not give his contact details to the operator

57


Persistent Re-posting

• Where the same poster persistently posts the same or substantially the same material

on the same website a different approach is required by the operator (para 8 of the

Schedule)

• On the first repeat posting, once notified in accordance with s.5(6) and Reg 2, the

operator must follow the steps above under Schedule 1

• However, on the second or any subsequent occasion on which the same or

substantially the same statement is posted on the same site, in order to have the s.5

defence the operator must remove it within 48 hours of receipt of the latest notice

• The burden is on the complainant to notify the operator that this is the third or more

occasion of complaint. The purpose is to protect the complainant from having to

comply with the s.5 procedure over and over again

• It is for the operator to determine whether the statement is substantially the same; a

question of judgment and potentially a significant burden

58


(2) Operator Can Ignore s.5 and Rely on Reg 19

• The operator may not wish to use the s.5 procedure - because for example it considers its protection for its

users‟ free speech rights inadequate when compared to the relatively liberal defence in Reg 19 of the

Electronic Commerce (EC Directive) Regulations 2002

• In particular it may be thought that the s.5 approach is too arbitrary in its approach to when a statement

must be taken down, sets too low a hurdle for the complainant and that in fact the regime is simply a

“notice and take down” procedure

• In this regard section 5(11) may be concerning – it allows the claimant to defeat the s.5 defence on proof

that the operator acted “with malice in relation to the posting of the statement”. Malice is not defined. The

Explanatory Notes to the 2013 Act state: “This might arise where, for example, the website operator had

incited the poster to make the posting or had otherwise colluded with the poster” (para 42). Whether that is

intended to be akin to a dominant improper motive is not known

• Will s.5(11) lead to a claimant arguing that the defence was nullified after he notified the operator of his

belief that aspects of the statement were inaccurate or, if opinion, were not supported by fact (cf Reg

2(c))? This construction would surely not be consistent with the purpose of the section; i.e. to facilitate take

down or direct resolution

59


(2) s.5/Reg 19 (contd.)

• On the other hand, the operator will have a defence under Reg 19 (as currently applied)

where the claimant has not provided sufficient information to the operator for it to be fixed

with actual knowledge of unlawful activity by the poster; e.g. knowledge that the statement

complained of is libellous (cf defamatory) – i.e. untrue or unprotected by another defence –

see Davison v Habeeb [2012] 3 CMLR 6 at [68]

• E.g. John Smith‟s third complaint does not provide sufficient information for the operator to

be able to assess whether, as he claims, the words complained of are false. The operator

would have a good prospect of success with a Reg 19 defence in these circumstances

• Whereas, under the s.5 regime, if “Truthteller” did not reply within the stipulated time or

declined to say whether he agreed to the statement being removed, the operator would have

to remove it to be protected by the s.5 defence, despite the mere assertion of falsity. Or, in

the case of the first statement (“Smith is a prat!”), even though it would not pass the section

1 test

60


(2) s.5/Reg 19 (contd.)

• Could the requirement for the complainant to set out the aspects of the

statement which he believes to be factually inaccurate or opinions not

supported by fact (Reg 2) make the Reg 19 defence redundant?

• It seems not. The test in Reg 2 is not entirely clear. But on its face it is

different:

– Reg 2 only requires an assertion of subjective belief of falsity. Reg 19 (as

interpreted in Davison and Tamiz v Google [2012] EMLR 24) requires the

information provided to be sufficiently precise and well substantiated to

fix the operator with actual knowledge of unlawful conduct

61


Concluding Observations

• How useful will s.5 actually be for operators?

• E.g. domestic newspapers with public comment feeds may simply remove

the comment complained of instead of devoting time to jumping through the

Schedule 1 hoops, contacting the poster etc

• A US domiciled operator on the other hand may prefer to continue to review

the merits of the complaint and try to rely on Reg 19 to protect users‟ free

speech rights

62


Concluding Observations (contd.)

• S.5 is potentially a good addition in that it should in theory reduce the number of

opportunistic complaints intended to pin liability for publication on neutral

operators, whilst facilitating resolution between the 2 main protagonists

• However it is to be hoped that the burdensome bureaucracy of the procedure

does not put operators off using it

• And the extent of cooperation to be expected by posters is of course unknown

• Ultimately, there will be room for defences under s.5, s.1 Defamation Act 1996

and Reg 19 to be run together, perhaps as well as the new s.10 of the 2013 Act

63


Section 8 of the Defamation Act 2013

“NOT A SINGLE PUBLICATION RULE“

IAN HELME


Multiple Publication Rule

(1) The rule that each separate publication gives rise to a separate cause of action (the „multiple-publication rule‟) remains good law • Multiple-publication rule is that “...each separate publication gives rise to a separate cause of

action”: Jameel v Dow Jones Inc [2005] QB 946 or “each publication is a separate tort”: Berezovsky v Michaels [2000] 1 WLR 1004; both from Duke of Brunswick v Harmer (1849) 14 QB 185

• No express abolition of common-law rule (unlike sections 2(4), 3(8) and 4(6))

• Section 8 is fundamentally different, for example, from the position as set out in the Uniform Single Publication Act (1952) which provides that “No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture”

• In fact Section 8(3) – the operative part of the section – assumes the continuing existence of the common law rule

65


Section 8(3) – Rule of Limitation

(2) Section 8(3) disapplies – in specific circumstances – the most obvious consequence of the

common law rule: that each publication has its own limitation period. This means that

Section 8 contains a rule of Limitation, not of Publication

• Section 8(3) provides that “For the purposes of section 4A of the Limitation Act 1980...

any cause of action against the person for defamation in respect of the subsequent

publication is to be treated as having accrued on the date of first publication”

• Brought in because of the potential injustice of the common law rule: see the Duke of

Brunswick‟s case. One answer had already been offered by the common law in the

form of the doctrine of abuse: “[the claimant] acquired a technical cause of action but

we would today condemn the entire exercise as an abuse of process”: Jameel. There

is discussion of the relationship between delay and abuse in Adelson v Anderson

[2011] EWHC 2497

66


Section 8(3) – Rule of Limitation (contd.)

• No change was necessarily required by Article 10: Times Newspapers Ltd

v UK [2009] E.M.L.R. 14. Limitation is in principle within Member States‟

margin of appreciation. But “libel proceedings brought against a newspaper

after a significant lapse of time may well, in the absence of exceptional

circumstances, give rise to a disproportionate interference with press

freedom under art.10”

• If the section does not apply the Defendant can still not rely on his (or anyone else‟s) previous publications in mitigation: Dingle v Associated Newspapers Ltd [1964] A.C. 371; Rath v Guardian News & Media Ltd [2008] EWHC 398.

• The common law may have been contemplating a loosening of these

principles through the prism of Jameel: Ronaldo v Telegraph Media Group Ltd [2010] EWHC 2710

67


Practical Operation: Three Stages

(3) It is unclear how the new rule will operate as a matter of practice. It appears that

there are three distinct stages: (a) the requirements in subsection (1); (b) the

exception in subsection (4); and (c) the discretion of Section 32A of the

Limitation Act 1980, retained by subsection (6)

• Limitation is a defence: Abdulla v Birmingham City Council [2012]

ICR 1419. It seems likely that a Defendant seeking to rely upon

Section 8 will need to make an application in the normal way, with

evidence

• From the respective wording of subsections (1) “This section applies if”

and (4) “This section does not apply...if” it would appear that if there is

a burden to be borne it is by a Defendant under the former and, if

satisfied, the Claimant under the latter

68


Three Stages (contd.)

• Subsection (6) states that the section “does not affect the court‟s discretion

under section 32A”. Invocation of that section by a Claimant is normally by

application and “It is for the claimants to make out a case for the

disapplication, or relaxation, of the normal rule”: Steedman v BBC [2002]

EMLR 17. It is unclear whether cross-applications will be necessary

• It remains to be seen whether there is ambit for the application of the

Jameel doctrine outside these specific parameters; in particular if a

Defendant cannot satisfy the requirements of subsection (1)

• Potentially significant consequences for Pre-Action Protocol complaints and,

in particular, responses from Defendants

• Section 8(3) limited to defamation claims

69


Stage (1): Requirements of Section 8 (1)

(4) The requirements of subsection (1) are not without considerable complexity. Crucially,

the only straightforward reading of the text severely restricts the protection offered to

existing archive material

• Section 8(1) provides that: “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.” Section 8(2) provides that subsection (1) (a) catches “publication to a section

of the public”

• The first statement must be published. It seems clear from Section 15 that the

subsection requires proof of actual publication, not merely availability: “In this Act –

„publish‟ and „publication‟... have the meaning they have for the purposes of the law of

defamation generally.” In relation to the internet this would seem to turn Al-Amoudi v

Brisard [2007] 1 WLR 113 around against Defendants

70


Section 8 (1) (contd.)

• Publication before the commencement of the Act is completely irrelevant. This would seem the

only logical reading of Section 16(6): “In determining whether section 8 applies, no account is to be

taken of any publication made before the commencement of the section.” This has two important

consequences:

– The Section does not really come into effect until one year from the commencement date of the

Act; and

– Thereafter a Defendant must prove the first publication has been published after the

commencement date. For historical articles, this may be very difficult or even impossible

• Publication must be to the public/section of the public. Huge potential for legal and factual

argument about the meaning of these words. The Explanatory Notes (para. 61) are almost wilfully

contradictory: “Publication to the public has been selected as the trigger point because it is from this

point on that problems are generally encountered with internet publications and in order to stop the

new provision catching limited publications leading up to the public at large. The definition in

subsection (2) is intended to ensure that publications to a limited number of people are covered

(for example where a blog has a small number of subscribers or followers)”

71



– The requirement suggests an issue of accessibility which sits uneasily both with

the express proof of publication condition and with subsection (3) which appears

to envisage a single publication date

– Section 1 of the 1996 Defamation Act uses the words to define its own ambit:

“„publisher‟ means a commercial publisher, that is, a person whose business is

issuing material to the public, or a section of the public, who issues material

containing the statement in the course of that business”

– The concept of „section of the public‟ is common in other areas of law and has

been subject of judicial analysis in those contexts: see e.g. Dingle v Turner

[1972] 2 W.L.R. 523 (charitable trusts) and Charter v Race Relations Board

[1973] A.C. 868 at 901 (race relations; with express warnings about reading

across from other areas of law). Arlidge & Eady on Contempt devotes

considerable text to its meaning in the context of Section 2(1) the Contempt of

Court Act 1981: §4-37-4.54

72



– The Explanatory Notes suggest that it is intended to include websites limited by subscription

or interest

– It is difficult to suggest other than it may be a matter of fact and degree in any particular case

• Both publications must be by the same person. If A publishes the first publication and A and B

publish the section publication, may B take advantage of the Section? Subsection (3) would

suggest not (“any cause of action against the person...”) but the idea of two separate limitation

periods for the same publication is awkward

• Subsequent publication must be the same/substantially the same. Also considerable room for

argument. Whilst superficially similar to principles relating to injunctions and justification (now

section 2(1)) defences, in this context it is unlikely that the wording can relate only to meaning. It is

easy to envisage both: (a) two articles that have almost identical text but convey different

defamatory meanings; and (b) two articles that are entirely different but convey the same

defamatory meaning. See also the clear wording of Section 9(3). It would seem that it must relate to

content as „manner‟ is an issue for subsection (4). Again a question of fact and degree?

73


Stage (2): Exemption of Section 8 (4)

(5) The application of subsection (4) is already recognised as being one which will require

extensive precedent to illuminate. A similar, but different, principle operating in the United

States is a key battleground in federal and state jurisdictions

• Subsection (4) states “This section does not apply in relation to the subsequent

publication if the manner of that publication is materially different from the manner of

the first publication.” Subsection (5) lists matters “to which the Court may have regard”

as including: “(a) the level of prominence that a statement is given; (b) the extent of

the subsequent publication”

• „Manner‟ and „materially different‟ are not defined. Nor does the subsection specify

how the Court determines whether the subsection applies, or what factors it must take

into account. The example offered in the Explanatory Notes (para. 61) seems to

contemplate a form of „comparative prominence‟ test, although if pushed too far this

would seem to undermine the purpose of the entire section. The question would

appear to be objective

74



• It is not clear why „the extent of subsequent publication‟ has been specifically

identified as a consideration independent of extent of initial publication

• There are various approaches in the US as to when there is a „new publication‟. As

there is a genuine „single publication rule‟ in the US, the question under which similar issues

arise is whether there has been a separate publication. The commentary to relevant rule in

the Restatement (Second) of Torts introduces a subjective element: there is a new

publication when it “is intended to and does reach a new group”. An example offered is a new

edition of a book.

• US Courts have reached apparently more restrictive conclusions, whilst stating that it is

generally an issue of fact and degree: e.g. Firth v State (N.Y.Ct.Cl. 2000) 706 NYS2d 835;

Rinaldi v Viking Penguin, Inc (N.Y.1981) 420 N.E.2d 377; The Traditional Cat Association Inc

v Gilbreath (2004) 12 Cal Reporter 3d; Canatella v K van de Kamp (2007) 486 F.3d 1128;

Christoff v Nestle USA, Inc (2007) 62 Cal.Rptr.3d 122

75


Stage (3): Discretion via Section 8 (6)

(6) The discretion in section 32A of the Limitation Act 1980 has become very important. It seems

difficult to imagine a case in which a Claimant, faced with an application from a Defendant under Section

8, would not invoke the Court‟s discretion under section 32A (at least as a precaution)

• Section 32A provides that the Court may direct that the limitation period for a defamation (or

malicious falsehood) claim be disapplied if “in all the circumstances of the case” it is “equitable to

allow an action to proceed” having regard to the balance of prejudice to the parties. Steedman

describes the nature of the discretion: “The discretion afforded by this section is largely unfettered.

It requires the court to balance any prejudice to the claimant on the one hand and the defendant on

the other in allowing the action to proceed or otherwise. All the circumstances of the case must be

had regard to in assessing the justice of the matter with particular reference to the length of, and

reasons for, the delay and the extent to which the passage of time since the expiration of the

limitation period has had an impact on the availability or cogency of relevant evidence”

• The „all the circumstances‟ equitable test further undermines the certainty apparently

offered by Section 8(3). In Maccaba v Lichtenstein [2003] EWHC 1325 Gray J stated that the

power should only be exercised in „exceptional circumstances‟. There is a wide ambit for evidence.

76


Section 9 of the Defamation Act 2013

“A NEW APPROACH TO FORUM

DISPUTES?”

AIDAN EARDLEY


“There are few areas where the UK is stronger than in the law. The rule of law is one of our

greatest exports. English law was firmly established by the late 19th century as the

predominant law of commerce for international business transactions. Our law boasts the ideal

combination of predictability and flexibility and lawyers in the UK have rightly earned a

reputation for integrity and trust

Little wonder then that English law now provides the legal framework for most international

commercial transactions; while most of the litigation before Courts in the UK involves at least

one foreign party. Also, there are virtually no barriers for international law firms wishing to enter

the UK market, making London the home of more than 200 foreign law firms

This freedom to operate and the regard for law in the UK means confidence; and this

confidence has helped make UK legal services so important to our economy. The figures are

impressive - UK legal services generated £19.3bn in 2010, while legal services exports for

2010 totalled £3.6bn. And as the UK‟s economy emerges from a difficult period, the

Government is committed to supporting the growth of legal services. It is vitally important that

the country builds on this strength to support the recovery. “

78

Kenneth Clarke MP, 07.12.11


Is There a Libel Tourism Problem?

2009 statistics

– 291 defamation claims issued in High Court

– 34 had a “foreign connection”

– 5 cases with a defendant whose address was outside EU

– 2 of those cases were brought by claimants outside England &

Wales

79

Source: Report of the Libel Working Group, MOJ, March 2010

The tip of the iceberg?


The Current Position

80

1) Court must accept jurisdiction if Defendant domiciled in England & Wales

– Judgments Regulation (Council Regulation (EC) 44/2001), Art 2;

Owusu v Jackson [2005] QB 801

1) Court must accept jurisdiction if Defendant domiciled in another EU state,

Switzerland, Norway, or Iceland and words complained of published here

– Judgments Regulation Art 5(3); Lugano Convention 2007; Shevill v

Presse Alliance SA [1995] 2 AC 18

1) Court may decline jurisdiction if Defendant domiciled in some other state

– Common law doctrine of forum (non) conveniens


Forum Conveniens

81

• Is England “clearly the appropriate forum in which the case should be tried in the

interests of all the parties and the ends of justice?”

Berezovsky v Michaels [2000] 1 WLR 1004 • Relevant factors:

– Does publication here amount to “real and substantial tort”?

– Extent of publication here (including as a proportion of total publication)

– Extent of claimant‟s reputation here

– Subject matter

– Availability of witnesses and evidence

– (in order to rebut initial finding) legitimate personal or juridical advantage

requiring trial in England


What‟s Going to Change?

82

Defamation Act 2013, Section 9

9 - Action against a person not domiciled in the UK or a Member State etc

1) This section applies to an action for defamation against a person who is not domiciled:

a. In the United Kingdom

b. In another Member State;

c. In a state which is for the time being a contracting party to the

Lugano Convention

(definitions in sub-sections (4) & (5))


Section 9 (2): New Provision Where Court Previously Had Discretion to Decline Jurisdiction

83

(2) A court does not have jurisdiction to hear and determine an action to which

this section applies unless the court is satisfied that, of all the places 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


A Small Change of Approach?

84

• Substantial publication here no longer creates a presumption in favour of

accepting jurisdiction?

c.f. Berezovsky; King v Lewis [2005] EMLR 4

• Defendant should not be punished for choosing online publication?

c.f. King v Lewis

• No longer a matter of discretion


Explanatory Notes on Section 9 (2)

• “This means that in cases where a statement has been published in this jurisdiction and

also abroad the court will be required to consider the overall global picture to consider

where it would be most appropriate for a claim to be heard. It is intended that this will

overcome the problem of courts readily accepting jurisdiction simply because a claimant

frames their claim so as to focus on damage which has occurred in this jurisdiction only.

This would mean that, for example, if a statement was published 100,000 times in

Australia and only 5,000 times in England that would be a good basis on which to

conclude that the most appropriate jurisdiction in which to bring an action in respect

of the statement was Australia rather than England. There will however be a range of

factors which the court may wish to take into account including, for example, the amount of

damage to the claimant‟s reputation in this jurisdiction compared to elsewhere, the extent

to which the publication was targeted at a readership in this jurisdiction compared to

elsewhere, and whether there is reason to think that the claimant would not receive a fair

hearing elsewhere.”

85


Section 9 (3): Expanded Definition of “Statement Complained of”

86

(3) The references in subsection (2) to the statement complained of include

references to any statement which conveys the same, or substantially the

same, imputation as the statement complained of

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