The Defamation Act 2013: What is it and has it worked?

Nods to free speech, but has a detrimental impact on businesses

The law on libel has proved a hot topic of discussion since the turn of the decade.

Defined as publishing a written statement that is damaging to a person’s reputation, libel can give way to penalties in the civil courts if a successful claim is advanced.

The campaign for important and wide-scale libel reform has chugged on for four years, since the ‘The Libel Reform Campaign’ was founded in 2009. Activists have pushed for a cheaper, simpler, and more modern law on defamation than the piecemeal approach advocated pre-reform. The Defamation Bill 2012 was the first time wholesale reform had been debated in parliament since the mid 19th century.

Problems with the old law were innumerable: the risk of trivial claims; the use of libel laws to stamp on sensible discussion; and the lack of clear statutory defences are just a few of the long list.

This campaign has culminated in the Defamation Act 2013, which came into force from 1 January 2014. This statute has — according to the Ministry of Justice anyway — reversed “the chilling effect on freedom of expression” that the past libel law allowed.

It’s now considerably harder for a claimant to bring an action in defamation, signalling a nod to freedom of expression and public debate, whilst diminishing a person’s right to a reputation.

So how has the law changed, and has it changed for the better?

S1 of the Defamation Act 2013 has slotted in a new provision of “serious harm”. A statement will not be considered defamatory unless it has caused, or is likely to cause, serious harm to the claimant’s reputation. This section raises the bar and sets an additional hurdle for a claimant to overcome if he wants to be successful. S1 means that trivial claims can be struck out early.

What this section has also done, however, is made it much more difficult for companies to sue, as s1(2) defines “serious harm” for the purposes of a company’s reputation as something that causes or is likely to cause them “serious financial loss”. Timothy Pinto — from Taylor Wessing — predicts that defendants will now be braver about criticising companies, and that more actions will instead be brought by individuals associated with the company, so as to circumvent the extremely high threshold set for companies by s1(2).

S3 replaces the previous defence of fair comment with the newly coined defence of honest comment. This defence protects honest people and their right to express an opinion, however bizarre or exaggerated this opinion may be. This defence is more favourable to defendants than was so under the old law, excluding the previous requirement for the opinion to be on a matter of public interest — so who knows what tabloid gossip will now be caught and protected by s3.

The public interest requirement has been shuffled along into s4 of the Act, creating a new statutory defence entirely. Based on the common law defence established in Reynolds v Times Newspapers, the defence is a flexible mechanism for protecting defendants whose statement was made as a matter of public interest. Doing away with a number of hoops from the common law test, the success of the defence boils down to the defendant’s “reasonable belief” — clearly a very subjective indicator.

A lot has changed, but it’s impossible to draw a conclusion on whether if this is for better or worse.

Case law is thin on the ground, so only a few conclusions can be drawn. The Act very much pushes for the respect and the importance of freedom of expression and free speech, to the detriment of claimants who will now find it much harder to push their claims through the court. It’s companies that have lost out the hardest. Shackled by s1(2), the UK looks set for a new wave of libel actions whereby individual workers at the company are named, as opposed to the company’s name itself.

Beth Grant is a final year law student at the University of Sussex.