Defamation Bill: Second Reading

Lord Lester’s Private Member’s Bill has received its Second Reading in the House of Lords. According to the Explanatory Notes to the Bill, it aims to:

  1. strike a fair balance between private reputation and public information as protected by the common law and constitutional right to freedom of expression;
  2. modernise the defences to defamation proceedings of privilege, fair comment, justification, and innocent dissemination, in accordance with the overriding requirements of the public interest;
  3. require claimants to demonstrate that they have suffered or are likely to suffer real harm as a result of the defamatory publication of which they complain;
  4. require corporate claimants to prove financial loss (or the likelihood of such loss) as a condition of establishing liability;
  5. encourage the speedy resolution of disputes;
  6. make the normal mode of trial, trial by judge alone rather than by judge and jury;
  7. enable the Speaker of either House of Parliament to waive Parliamentary privilege as regards evidence concerning proceedings in Parliament; and
  8. modernise statutory privilege.

Many individuals and organisations have called for urgent reform of defamation law. Campaigners have often argued that the current law has a ‘chilling effect’ on freedom of speech, and that journalists in particular require greater protection. Some groups have even gone so far as to claim that the law should have no place in scientific debates (see http://www.senseaboutscience.org.uk/index.php/site/project/334). Nonetheless, current English law is generally sound in the light of European Court of Human Rights case law on the Article 10 right to freedom of expression and the Article 8 right to respect for private and family life, which extends to protection of reputation. Furthermore, defences to defamation claims may already go too far towards protection of freedom of expression in some respects; for example, it is arguable that the so-called Reynolds defence provides too much protection in relation to poor journalistic practice.

Would Lord Lester’s Bill take the law in the right direction? The real problem with defamation law may be the use of jury trials, which may slow proceedings and increase costs, and Lord Lester’s Bill would not necessarily make any significant changes in this respect. Clause 14 of the Bill would controversially reverse the presumption of trial by jury. However, clause 15 would allow such a trial ‘If the court is satisfied that it is in the interests of justice to do so’, having regard to certain specified factors. These specified factors are so wide that any defended action could well justify jury trial on the facts.

The current Bill may have spurred on the debate but it is unlikely to become law because the Government has its own plans. The Ministry of Justice intends to publish its own draft Defamation Bill in the New Year, and to introduce a Bill to reform this area of the law as soon as possible after appropriate consultation with interested parties. Clarity of concepts and their scope is vital in any such reform.

For the full text of Lord Lester’s Bill, see http://www.publications.parliament.uk/pa/ld201011/ldbills/003/11003.i-ii.html#top.

For the full text of the Explanatory Notes, see http://www.senseaboutscience.org.uk/libelcampaign/Defamation%20Bill%20%20Explanatory%20notes.pdf.

For coverage of the Parliamentary debate about Lord Lester’s Bill, see http://www.parliament.uk/business/news/2010/07/lord-willis/.

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