Defamation defence boost

Two additions have been made to the Defamation Bill, providing new defences for website operators and academic journals.

Clause 5 of the Bill—included in the Queen’s Speech last week—provides that an internet operator has a defence if it can show it did not post the material. Clause 6 sets out a new defence of qualified privilege for peer-reviewed material in scientific or academic journals.

The government consulted on a draft Defamation Bill last year.

The Bill introduces a single publication rule to prevent repeat actions over the same or similar material by the same publisher—for example, where material is published online—with a one-year limitation period. It raises the bar for bringing a claim, by requiring material to have caused or to be likely to cause “serious harm” to a claimant before it can be considered defamatory.

It replaces the common law defence of “fair comment” with the statutory defence of “honest opinion”, and takes a potshot at “libel tourism” by providing that the courts should not deal with actions brought against non-UK or non-EU residents unless satisfied it is appropriate to do so. Clause 11 removes the presumption that defamation cases will be tried by jury.

Robert Dougans, an associate at Bryan Cave, says: “It’s a bit of a curate’s egg.

“I like the part about ‘serious harm’, but I am concerned about the end of jury trials. I think they can bring a degree of sanity into the circus that libel can sometimes become.”

Dougans, who acted for science journalist Simon Singh in the high-profile libel claim brought by the British Chiropractic Association, says he would like to see a tribunal set up for “small-scale” libel claims, which could be structured in a similar way to employment tribunals.

“A two-day hearing in the High Court is time-consuming and expensive, and the chances of getting your costs back are minimal. The reason that these cases can’t be heard in the county court is that they are considered too complicated. My personal view is that, if libel is too complicated for the county court, then libel reform has failed.”