Joint Select Committee publishes report on Draft Defamation Bill
The joint committee on the Draft Defamation Bill has today published its first report. While the majority of the reforms on libel law contained in the Bill were welcomed as overdue, the committee has also criticised several proposed changes and, significantly, recommended that the Government’s draft Bill is further amended in order to give greater protection to freedom of expression. The Government is urged to present a revised version ‘without delay’.
The following is a summary of the committee’s key conclusions and recommendations:
Substance of the Bill
- On balance, the committee supports the Government’s approach to the public interest defence. In particular, it agrees that the term ‘public interest’ should not be defined (paras 37 & 64).
- A judge who upholds a public interest defence should make it clear when the truth of the allegation in question is also not proven. For that purpose, it may be appropriate to order that a summary of the court’s judgment be published (para 36).
- In deciding whether publication was responsible, judges should have regard to any reasonable editorial judgment as to the tone and timing of the publication (paras 35 & 65).
- The reportage defence included in the Bill should be reformulated as a matter to which the court may have regard in deciding whether a publisher has acted responsibly, namely "whether it was in the public interest to publish the statement as part of an accurate and impartial account of a dispute between the claimant and another person" (para 66).
- The term ‘public interest’ should be discarded as an unnecessary complication.
- So as to avoid protecting ‘bare opinions’, the Bill should be amended to require the subject area of the facts on which the opinion is based to be sufficiently indicated either in the statement or by context.
- The Bill should require the court, when deciding whether an honest person could have held the relevant opinion, to take into account any facts that existed at the time of publication which undermine the facts relied on to the extent that they are no longer capable of supporting the opinion.
- The Bill should require the statement in question to be recognisable as an opinion (in line with Lord Lester’s approach).
- The reference to ‘privilege’ should be clarified so as to make it clear that it is confined to the absolute or qualified privilege which attaches at common law or by statute to fair and accurate reporting.
Qualified privilege should be extended to peer-reviewed articles in journals; fair and accurate reports of academic and scientific conferences; and all forms of communication between constituents and MPs (acting in their official capacity) (paras 48, 52 & 70)
A provision should be added which provides the press with a clear and unfettered right to report on what is said in Parliament (para 51).
The Government should provide additional guidance on how the courts should interpret the Bill’s libel tourism
provisions. In cases of suspected libel tourism, the courts should have regard to the damage caused elsewhere in comparison to the damage caused in this jurisdiction. It should also be clarified that residents in England and Wales may sue in this jurisdiction in respect of publications abroad where the current law permits it (paras 56 & 72).
The single publication rule
should protect anyone who republishes the same material in a similar manner after it has been in the public domain for more than one year. The Government should clarify that in general, making a paper-based publication available online, or vice versa, does not amount to republication in a ‘materially different manner’ (paras 59 & 71).
The ‘innocent dissemination’
defence should be amended so that secondary publishers are provided with the same level of protection that existed prior to the introduction of s. 1 of the Defamation Act 1996 (para 60).
In relation to internet publication
, the committee proposes a new notice and take-down procedure and measures to encourage a change in culture in the way user-generated anonymous material is dealt with (para 93). The Government should take action to reduce the pressure on hosts and service providers to take down material whenever it is challenged as being defamatory and to encourage site owners to moderate content written by its users (para 100). The committee sets out specific proposals in relation to identifiable internet publications on the one hand (para 104), and unidentifiable publications on the other (para 105).
should not lose the right to sue in defamation altogether, though they should be required to obtain the permission of the court before bringing a libel claim (para 116). The committee favours an approach which limits libel claims by corporations to situations where they can prove the likelihood of ‘substantial financial loss’ (paras 114-115). That test should not however extend to charities or non-governmental organisations (para 118).
In terms of procedure, the committee proposes an approach with three elements: a presumption that mediation or neutral evaluation will be the norm; voluntary arbitration; and, if the claim has not been settled, court determination of key issues using improved procedures (para 79):
- Mediation or assessment by a suitably qualified third party should be the first step following the initial exchange of letters. A failure to engage with the process should result in costs consequences (para 82).
- The committee encourages the Government to further explore the development of a voluntary, media-orientated forum for dispute resolution (para 84). Incentives to use arbitration should be strengthened (para 85).
- The Government should consider more radical changes to the way in which courts operate. The committee emphasises the benefits of more aggressive case management (para 86).
-The Government should reconsider the implementation of the Jackson Report in respect of defamation actions (para 89).
The committee’s report can be found at