The Defamation Act 2013 – A First Look

It's Not All Change... And It's Not Yet In Force

At last, after lengthy legislative to-ing and fro-ing, the new Defamation Act 2013 has been passed and is ready to come into force.

We are promised that "....the Defamation Act will be brought into force later in the year." https://www.gov.uk/government/news/defamation-act-reforms-libel-law In the words of 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 which has today completed its passage through Parliament will overhaul the libel laws in England and Wales and bring them into the 21st century, creating a more balanced and fair law."

It is already a subject of debate as to how much it will really change. Claimant lawyers seem to be minimizing its likely impact, stressing that it largely codifies existing judgemade law, and deals with some areas (like "libel tourism") that had become really only theoretical problems. Freedom of expression campaigners have given the Act a cautious welcome.

Much will depend on how the judges implement it once it's law.

In a nutshell the Act:

Introduces a "serious harm" threshold for defamation complaints (section 1)

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 being struck out which are trivial is an established principle of case law since Jameel (Yousef) v Dow Jones & Co. Inc. [2005] EWCA Civ 75 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 it probably tips the balance somewhat in favour of freedom of expression about corporate activities - i.e. it restricts the ability of corporate muscle to use the fear of libel proceedings to silence their critics.

Puts the defences of truth, honest opinion and publication on a matter of public interest into statutory form...