The Defamation Act 2013: It’s Not All Change But It’s Now In Force At Last

The Defamation Act 2013 came into force on 1 January 2014.

Its aims were summarised by Lord McNally, Justice Minister:

"The previous law on libel cases had been criticised as being antiquated, costly and unfair, which resulted in a chilling effect on freedom of expression and the stifling of legitimate debate.

The Defamation Act 2013 ... will overhaul the libel laws in England and Wales and bring them into the 21st century, creating a more balanced and fair law."

There has been considerable debate about how much the new Act will change things in practice. Claimant lawyers have been seeking to play down its likely impact, stressing that it largely codifies existing judge-made law, and deals with some areas (like "libel tourism") that they say had become really only theoretical problems. Freedom of expression campaigners have welcomed the Act. The Press Gazette said: "Journalists are set to have greater protection from being sued for libel".

Much will of course depend on how the judges implement the provisions of the 2013 Act once cases start to come before them.

Possibly the most important practical change is in section 1, which introduces a "serious harm" threshold for defamation complaints.

To be the subject of a defamation action, a statement will have to have caused, or be likely to cause, "serious harm" to the reputation of the claimant.

The concept of libel actions which are trivial being struck out had already been an established principle of case law but section 1 is intended to 'raise the bar' (to use the Justice Ministry's phrase) as to what constitutes a viable libel complaint.

There is specific focus on corporate claimants: section 1(2) states that "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". This does not mean a company will have to prove specific financial loss before being allowed to sue, but it does signal a greater emphasis at the outset of a complaint on whether serious financial loss is a likelihood as a result of the publication complained about by the company.

As such, the new Act will tip the balance in favour of freedom of expression about corporate activities - i.e. it restricts the ability of corporate entities to use the fear of libel proceedings to silence their critics.

In practice, section 1 is likely to enable media organisations and social media participants to operate with greater confidence that trivial libel complaints will be fewer in number and where they arise, can be rebutted more robustly and cheaply.

The Act puts the defences of truth, honest opinion and publication on a matter of public interest into statutory form (sections 2, 3 & 4)

The corresponding common law defences (previously called justification, fair/honest comment and the Reynolds defence) are abolished. This appears to the most farreaching reform of all.

However it seems that the sections are intended to replicate / simplify the law as it was, not change...