The Defamation Act 2013 is now in force and creates big changes to the legal climate for all journalists working in England and Wales.
Thankfully nearly all these changes are for the better. It is harder now for companies and individuals to sue for libel, privilege has been extended to include scientific papers and conferences and publications are largely immune from being sued over website comments (provided they are responsible in the way they operate their commenting system).
Libel tourism is set to be a thing of the past because the act says claimants from outside the EU must prove that the UK is the most appropriate jurisdiction to hear a case. And in future all libel cases will be heard by judges, rather than juries, unless the court orders otherwise.
But here are six key points from it that all journalists should bear in mind, summarised from Cleland Thom's e-book – Using the Defamation Act 2013.
1 – The serious harm test
Someone bringing a libel action will now have to prove that the statement caused, or was likely to cause, serious harm to their reputation.
This will probably have limited effect. Most people who start libel actions do so because a statement did cause them serious harm.
It is difficult to find a recent libel case that would have failed if the new law had been in force.
- There should be fewer trivial, time-consuming complaints that usually go nowhere
- Fewer cases will go to court
- Libel actions against web-only publications are likely to fail if the page did not attract many clicks.
2 – Taking care of business
Businesses can now sue only if a statement caused, or was likely to cause, serious financial loss.
They will probably have to provide documentary evidence, but not to the extent of producing profit and loss accounts.
3 – The public interest
The Reynolds public interest journalism defence has been abolished and replaced by the public interest defence.
Editors can use the defence if they can prove:
- The statement complained of was, or formed part of, a statement on a matter of public interest, and
- they reasonably believed that publishing the statement complained of was in the public interest.
Judges will probably produce a slightly less rigid version of the Ten Steps of Responsible Journalism used in Reynolds. So, little will change.
Editors wanting to use the defence will still have to establish that copy is balanced and neutral and that thorough steps were taken to verify the facts.
4 – More Privilege
Privileged material which is protected from defamation actions is now extended to cover:
- peer-reviewed statements in scientific and academic journals subject to the usual five conditions set out in the Defamation Act 1996
- reports of scientific and academic conferences and related documents
- articles based on information provided by public companies and at press conferences
- reports of proceedings of government from anywhere in the world, international conferences and international court proceedings.
5 – Single publication rule
The one-year time limit for starting web libel actions now starts when an article is first published online.
It does not re-start every time an article is viewed, or downloaded, as has been the case up to now.
6 – Website operators no longer have to pre-moderate reader comments
The act introduces a section 5 defence. This is a ‘report and remove’ system that people can use if they believe they have been defamed on a website message board.
The system enables website operators to deal with all initial correspondence in-house. This will save legal fees.
As a result of the new guidelines, website operators should:
- Have a robust, written complaints policy
- Designate and train staff to deal with complaints correctly, and within the new timescales. Timing is critical
- Acknowledge and deal with complaints promptly – preferably by email, in order to comply with the 48-hour deadline
- Give website users clear instructions on how to complain, and who to. This may mean providing a Report Abuse button
- Update their website terms and conditions to reflect the new arrangements
- A website operator providing message boards is advised to register users before they are allowed to make a post
- Registration should include taking their names and contact details
- Users should be told, before they accept site terms and conditions, that the operator may divulge their details if they post anything defamatory
- Keep proper written records of complaints, with the dates and times of actions taken.