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Draft Defamation Bill nearly gets there

by on 15 Mar, 2011

The Government’s draft Defamation Bill published today goes a long way to sorting out libel – but not far enough.

The good things it proposes are:

  • The claimant shall prove they were substantially damaged or were likely to be substantially damaged by the statement – now the claimant does not have to prove either;
  • There should be a new defence of “responsible publication” rather like the Reynolds defence in common law;
  • There should be a new defence of “truth” replacing the “justification” defence;
  • There shall be a new defence of “honest opinion” replacing the current “fair/honest opinion”; and
  • There should be a test to see if the English and Welsh courts are “the most appropriate” place to hear the case.

Calls for comments

The Bill also asks for more comments from interested parties to see if the following should be included:

  • Corporations should not sue individuals; and
  • That the limit of 1 year should only apply to the first publication, not the storage of publications in archives, including online archives.

In all, the Bill asks 43 questions for consultation.

I am surprised how far the Government is willing to go.  The need to prove “substantial damage” is a good one.  The defence of “responsible publication” is also good.  But the Bill does not go far enough.

What’s also needed

It should have included:

  • The claimant should have to swear in Court the statement is false – this would open them up to perjury if they lied; and
  • The claimant should have to prove they were actually damaged, rather than likely to be.

But, so far, so good.

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One Comment
  1. Jess McAree permalink

    I agree, Richard. It’s encouraging, but as we know from the way current Defamation law is interpreted in the courts, the Devil is in the detail.

    One of the biggest problems with current law, it seems to me, is the assumption that the defendant is guilty until proven innocent – which is an outrage in English law. The best way to solve this is indeed to make the claimant prove damage so that at least the court is arguing over a real issue rather than just a hypothetical one. But as you say, that’s not quite what this draft is proposing.

    The second problem is that pesky Fair Comment defence. It’s tricky – and problematic for defendants – precisely because there’s nothing meaty and specific in the legislation defining precisely what constitutes ‘fair’ and what doesn’t. As students of media law have to learn (painfully), judges have had to define this in case law over the years… with the current resulting hodge-podge of often contradictory ‘definitions’ that we currently work with.

    Unless the new ‘honest opinion’ defence is tightly defined, we’ll be in the same position as we are now. Only worse: because everything that we know now will be redundant and we’ll have to start again accumulating case law definitions from scratch. Journalists may end up pining for the Devil they knew.

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