The most significant change is a requirement for claimants to show they have suffered (or are likely to suffer) serious harm as a result of what was published. This should prevent trivial libel cases getting to court.
For companies to sue they must show that serious harm equates to a serious financial loss. This will make it harder for corporate bodies to use the libel law to stifle free speech. But note that something libelling a company will nearly always also libel its directors and they may be able to sue as individuals without needing to demonstrate financial loss.
The old law will continue to apply to things published before 1 January 2014.
Although Parliament’s intention with the new act was to remove burdens on free speech, courts go by the letter of the law. Thus, we cannot really know the impact of the changes until the first cases are heard and judges tell us their interpretation of the law. It is therefore difficult to say, for example, what ‘serious harm’ will mean in practice.
No change in two important areas
Truth remains an absolute defence to libel but defendants still need to prove the truth.
There is still no requirement for claimants to demonstrate that libels were intentional. This means it is still possible to libel someone accidentally (by typo, misidentification, juxtaposition, etc).
The justification defence has been renamed truth but remains more-or-less the same. You will only need to prove the truth of the part(s) of your story which have created serious harm. This means the truth defence should be more robust in practice.
Honest opinion defence replaces fair comment and the conditions change. To claim honest opinion you must show:
- The writing is opinion.
- The writer showed the basis for that opinion.
- An honest person could have held the opinion based on facts known at the time or on information protected by privilege.
- The defence is defeated if it can be shown the writer did not hold that opinion or, if they are quoting someone else, that they knew (or ought to have known) the quoted person did not hold that opinion
A new public interest defence replaces the common law Reynolds Defence. It applies where you can show a reasonable believe that there was a public interest in publishing. Courts must allow for your editorial judgement. This new defence also allows you to publish impartial reports of disputes without having to prove either side’s case. Although the Reynolds Defence is specifically abolished by the 2013 act, the Reynolds Tests may still be useful in making public interest judgements.
Privilege is extended to cover scientific or academic peer-reviewed journals and fair and accurate extracts from those journals.
Single publication rule. The one-year time limit now goes from the first publication. This means websites only publish when pages are uploaded (not every time someone downloads, as previously). Be wary of making changes to copy as this may create new publication in law and therefore start a new one-year time limit.
Libel tourism should be no more. English courts only have jurisdiction if the claimant lives in the EU, Norway, Switzerland or Iceland and only if, of all the places a libellous statement was published, England or Wales is the most appropriate place to bring an action.
Website operators get a new protections.
Judge-only trials will be the norm for libel.
Corrections and apologies may be required to be published if you lose a libel trial.
Scotland extended privilege to cover scientific journals but has otherwise not adopted changes to the libel law. This means there is no requirement to show serious harm. However, Scottish courts have only ever heard cases involving Scottish publications or having an impact on people living in Scotland.
Northern Ireland’s assembly has controversially rejected the 2013 Defamation Act which means that libel tourism in still possible there and the 1996 Act continues to apply for the time being.
The Defamation Act 2013