The Defamation Act 2013: The Emperor’s New Clothes?

The 1st of January - a time for resolutions, for good intentions and for kind words. On 1 January 2014 these resolutions are more apt than ever as the long-awaited Defamation Act 2013 finally comes into force. So is it time to step away from Twitter? Have the thunderclouds broken over the long summer holiday of libel tourism in England? And following the intense scrutiny of the press during the Leveson Inquiry, are we finally going to give them a break? Or is the new act, to all intents and purposes, the old one dressed up in the Emperor's new clothes to satisfy a political agenda?

It's been a slow legislative road to get to this point, a journey of almost four years since the Ministry of Justice first published a draft Defamation Bill for consultation in March 2011. However, when put into context (the last Defamation Act came into force in 1996, 10 years before Twitter was even founded) it was probably a necessary one. Where once the main perpetrators of defamatory statements were the print press, today anyone can find an audience for their thoughts, spoken or written; and these thoughts can be proliferated across the world in milliseconds via the Internet. So, whilst the judiciary has been carving its own path through the new electronic landscape, it was decided that a new act was required to silence the government's critics.

Form over Substance?

The critics' calls for change concerned not only the supposedly antiquated legislation and common law in this area, but also the reported ease with which claimants could bring actions in this country, so called "libel tourism". At 17 sections long, the Act appears to change a great deal but, once examined, it could be argued that only the form and not the substance of the law has been upgraded.

Changes for the Claimant

If you are to believe the lobbyists, our courts are chock-a-block with libel tourists bringing actions for defamation in the English courts. And there may be some truth in their outrage, as the upshot of this tourism is that some U.S. states have been driven to pass specific laws to prevent "unreasonable" libel rulings made in British courts from infringing on their own rights to freedom of speech. A quick glance at previous case law is a Forbes List of the foreign rich and famous, one such case qualified to be heard, and succeeded, after only 23 copies of a book were sold in this country. Whilst the comparatively wide jurisdiction of the English courts has been welcome bread and butter for lawyers, this practice has been branded embarrassing and disgraceful by politicians and watchdogs.

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