Prior the new legislation will be good news

Prior to the reform of
Defamation Act 2013, the 1952 Act was aimed to strike a balance between the
damages and the functions of the judge.1 Then,
coming to the 1996 Act was created to provide a clearer legislation on slander
and libel. However, these reforms did not solve the crucial issues on the
balance between freedom of expression and the protection of reputation in
English defamation law.2

The leading criticism of the
libel law is that the government does not prevent the ‘chilling effect’ on
freedom of speech. The Libel Reform Campaign has been requesting for a new
legislation since 2009.3 Moreover,
campaigners have petitioned for a cheaper, simpler, and more modern law on
defamation. This essay will examine the numerous problems with the old law such
as the risk of trivial claims, the rejection on sensible discussion and the vague
statutory defences, in comparison with the reform of the Act.4 Mike
Harris, whom is one of the campaigners, held that the new legislation will be
good news towards free speech.5  The Act came into force from 1 January 2014. According
to Ministry of Justice held that it reversed “the chilling effect on freedom of
expression” that the past libel law allowed.6

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The main criticism is that the
law in protection of reputation will always take effect with freedom of
expression.7
There are two forms of defamation, slander and libel. Slander is a transient
statement, which requires financial loss in establishing defamation. Libel is a
permanent statement whereby it is actionable per se. Re the degree of one reputation
can affect a person free speech. The protection of free speech is justifiable, the
more permanent the statement can cause greater damage. Hence, it is important
to determine the degree of reputation of a person. The general rule of freedom
of speech is provided by certain defences to defamation. Article 10(1)8 is
subjected to certain derogations in Article 10(2), whereby one of it is the
protection of reputation.9
However, it must be ‘prescribed by law’ and ‘a necessary democratic’.10 The
question is does the English law draw a balance between freedom of speech and
protection of reputation?

Firstly, there are
requirements to receive protection and to establish a defamatory statement. In
Libel law, the burden of proof is on the claimant.11 They
must be a reasonable person, whom with sufficient knowledge that the statement
is referring to them.12 Moreover,
the defamatory statement damages the claimant’s reputation,13
by affecting the right-thinking members of society14. The
old law for libel was heavily criticized that it is in need to re-examine their
doctrines of libel law.15 It
was common that many well-known claimants can sue for a published defamatory
statement without lawful justifications.16 It
is argued that the old law does not prevent trivial claims for the defendant. In
Jameel case, the Judge agreed with the claimant even though he did not prove
that the article was relating to him.17
This showed that it undermined the requirement of a defamatory statement.

The act18 was
codified for the claimant to prove that the defamatory statement is likely to
cause serious harm to their reputation.19 One
of the objective of the new act is to prevent trivial claim, for example
Victoria Beckham won a libel case against the defendant when she was considered
“picky, demanding and rude.”20 Which
she was being rewarded a substantial sum in damages due to the costly legal
expenses.21
Hence, the claimant must satisfy the test in the court that there is a serious
harm to cause the company “serious financial loss”.22 Company
has to go through a higher threshold to claim for defamatory damages. It can be
stated that the defendant will be braver to publish and criticize in their
articles relating to certain companies.23
Lord Scott held that many companies advertise and sponsor events since their
company reputation is based on an asset of monetary value.24
It is understandable that setting up a company, they must bear a burden on
maintaining their reputation so that they will not lose profits.

It must be noted that the
presumption of a statement is true. The primary defence is that damages will
not be awarded if there is a false reputation.25
In comparison with s.5 of Defamation Act 195226, showed
that it is hard to prove a specific claim. Since it is presumed that every
statement is untrue, the defence will not fail. The ambiguity of the
legislation makes it harder to provide a clear evidence and the cost charged in
the lawsuit. The old law discouraged people to prove even though the statements
were true.

Therefore, the old law for fair
comment is replaced by an honest comment in the act 2013.27 This
would protect the opinions and statements of the person no matter how
exaggerated it can be. Journalists and the press favour this position in
comparison with the old law. The old law focused on the public interest, now
the articles released by the journalists does not have to be in relation with
the public interest as long it is an opinion from an honest person.28 The
United Nations Human Rights Committee held that the old libel law was biased
towards the writers, in publishing articles related to public interest.29  Although it can be stated that the comment
does not have to be true. The jury has acknowledged that harsh comment may be
concerned with the public matters. Lathan LJ held that the author does not have
to be refined in a manner to write an article. Since they are free to express
their honest opinions.30
However, the defence will fail if there is malice.31

It must be noted that the jury
trials have been abolished in the 2013 act.32
The new act has given a chance to remove the presumption of defendants. Prior
to the reform, libel juries were heavily criticized on the high amount of
damages being rewarded to them in the civil proceedings.33
Lord Justice Neill has given a judgment to the Court of Appeal to order for a
new trial based on Jury damages.34 Section
8 has included ‘proper’ awards, the awards must be reasonable and proportionate
to be justified in establishing damages in reputation. The Court of Appeal had
provided a principle that it must be in line with the right to freedom of
expression when it is at stake.35 

Although Luke Cooper has
argued that there will be a damage in abolishing jury trials in libel cases.36
He has stated that judges favour barristers therefore, it created complexities
in the cases. Which will lengthen the duration of the case, and increase the
cost of litigations.37
However, it can be argued that jury trials are often costly which they do not
provide a proper judgment since jury is based on the question of facts. Lord
Denning held that certain cases are not meant for jury trials.38
The Conservative justice secretary’s libel reforms has stated the objective of
the reform will provide cheaper and fairer libel cases.39
It should be noted that the jury trial has not being completely abolish.
Section 69(1) of Senior Courts Act 198140
allowed the court to exercise it discretion to call for jury trials.41

More importantly, Defamation
Act 2013 aimed is not only to provide better protection for the journalists,
but also for the scientist. A popular libel tourism case of a cardiologist was
sued in proving his research on the malfunctioning of a heart device by US
manufacturers in libel.42 This
case was criticized that the US NMT medical should not intervene with the UK
case, since the cardiologist was based on the UK subsidiary and regulations
here.43

It can be argued that the old
law does not provide proper protection on libel tourisms, hence it contributed
to trivial defamation cases. The Telegraph has described that libel tourism is
an ’embarrassment’ in the UK.44
Many foreign cases were brought here had little to do with the UK jurisdictions,
it has brought many libel tourist into London.45 Therefore,
New York State passed ‘Rachel’s Law’ which has given limitation on libel
tourisms except for whether the foreign law grants the First Amendment
protections.46
In the UK, this led to a group of scientists formed The Libel Reform Campaign
to protect their scientist reviews from legal threats.47  Simon Singh, one of the campaigner, has
stated that there must be a need for a better protection on public interest defence.48

The common law defence of Reynold
test49
was replaced by Section 4 as an independent defence in the public interest.50 It
benefits the scientists or academic journals in publications relating to the
public interest.51
However, privilege will only be applicable if it is fair and accurate.52 The
court has reinforced the principles in Jameel case,53
whereby the published materials must be related to the public interests.54
Since the application of Reynold’s test was confined,  it created confusion in the courts.
Previously, the protection of reputation weighed more than the freedom of
expression in the privilege defence. Lord Hoffman held that judges should not
make decisions based on hindsight of the case.55

Libel tourists were one of the
weaknesses for the old defamation law.56
Parliament intended to prevent ‘libel tourism’ under Section 9 of the reform.57 The
claimant must provide full disclosure of the facts and it is the court’s
discretion to accept an action that can bring proceeding in England and Wales.58
In Magnitsky case,59 a
Moscow policeman sued against a UK manager on false accusation of Magnitsky
death during the police custody, but the court strikes the case, which there is
no connection for the plaintiff to defend his reputation in the UK.60 It
can be stated that this has limited the court jurisdictions on libel tourism in
the UK, the burden of proof shift to the defendant and individuals must
demonstrate the likeliness to suffer ‘serious’ harm or financial loss in the
UK.61

The old law does no justice to
the publishers in repeatedly publishing the same defamation articles. Moreover,
there is a grey area when it comes to online articles publications.62
The legislation was not updated while the internet has developed, and many online
articles were published by the media and journalists over the world. In Duke of
Brunswick case, it gave claimants many opportunities to sue the third party or
the original publisher in a repeated defamatory statement.63 Which
has formed a chain of legal threats towards the media.64
It can be stated that there is no balance on the right of freedom of expression
and protection of reputation. This common law legislation left an
unsatisfactory decision towards the defendants. The Court of Appeal held that
there is an unjustified restriction on freedom of expression in Loutchansky
case.65 Moreover,
the court has stated that under article 10,66
libel action has interfered with the freedom of expression by the press in
Times Newspapers v UK.67

However, the reform has mostly
ended the liability for online publishers.68 Although,
online statements could bring attention after the limited set period. It is
arguable on the level of distinction in a statement69,
and it is a discretion of the court to allow the claim.70
In the US, the court has rejected multiple publication rule long before the
reform,71
it was observed that the old rule creates greater potential for countless cases
of defendants.72
It could be argued that in a legal theory, it is difficult to justify with the
new act, every new person reads the libel statement after a publication of a
matter. Therefore, Parliament set a limit on the main issue, however it should
be dealing with the mischief of the reform instead of creating another
provision to deal with the reform.73

In conclusion, the reform has
also amended the public interest defence to deal with the lack of legal aid in
defamation law.74
It can be seen in McLibel case, the damages were costly in an unfair trial and
the reform of the provision has reduced the cost of litigation.75
The science community has played a role that made a huge impact on the reform,
to achieve a fair trial and balance between the right to freedom of expression
and right to reputation.76

1 David Erdos, “Data Protection and the Right to Reputation: Filling
the “Gaps” After the Defamation Act 2013, The Cambridge Law Journal, 73 2014,
pp 536-569 https://www.lexisnexis.com/uk/legal/results/enhdocview.do?docLinkInd=true&ersKey=23_T26985924024&format=GNBFULL&startDocNo=0&resultsUrlKey=0_T26985924049&backKey=20_T26985924050&csi=374818&docNo=1  Accessed 08/12/2017

2 European Court of Human Rights, article 8

3 ‘Defamation Act 2013 aims to improve libel laws’ (BBC News, 31 December 2013)  http://www.bbc.co.uk/news/uk-25551640
Accessed 08/12/2017

4 Defamation Act 2013

5 Ibid

6 Ministry of Justice and The Rt Hon Lord McNally ‘Defamation Act
reforms libel law’ (Gov.uk, 25 April
2013) https://www.gov.uk/government/news/defamation-act-reforms-libel-law
Accessed 08/12/2017

7 European Court on Human Rights, Article 10

8 Defamation Act 2013, Article 10(1)

9 Defamation Act 2013, Article 10(2)

10 Ibid

11 Sim v Stretch 1936 52 TLR
669

12 Morgan v Odhams Press Ltd
1971 1 W.L.R. 1239

13 Defamation Act 1996, s 1

14 Lewis v Daily Telegraph
1964 A.C 234

15 Duncan Campbell, ‘British Libel Law violate human rights, say UN’ (The guardian, 14 August 2008) https://www.theguardian.com/uk/2008/aug/14/law.unitednations
Accessed 08/12/2017

16 Frankie Boyle v MGN Ltd
2012 EWHC 2700 (QB)

17 Jameel v Dow Jones &
Co Inc 2005 EWCA Civ 75.

18 Defamation Act 2013, s 1

19 Defamation Act 2013, s 1(2)

20 McManus v Beckham 2002 EWCA
Civ 939

21 Ibid

22 Thornton v Telegraph Media
Group 2010 EWHC 1414 (QB)

23 Timothy Pinto, ‘Defamation Act 2013- A boost for free speech’, (Taylor Wessing, 2 May 2013) https://united-kingdom.taylorwessing.com/en/news-insights/details/defamation-act-2013-a-boost-for-free-speech-2013-05-02.html  Accessed 08/12/2017

24 South Hetton Coal Co. Ltd v
North-Eastern News Association 1894 1 Q.B. 133

25 M’Pherson v Daniels 1829
EngR 131

26 Defamation Act 1952, s 5

27 Defamation Act 2013, s 3

28 Joseph v Spiller (2010) UKSC
53

29 United Nation Economic and Social Council, Civil and Political
Rights, Including The Question Of Freedom of Expression, 2004, E/CN.4/2005/64
https://documents-dds-ny.un.org/doc/UNDOC/GEN/G05/106/90/PDF/G0510690.pdf?OpenElement
 Accessed 08/12/2017

30 Branson v Bower (No.2) 2002
Q.B. 737

31 Ibid

32 Defamation Act 2013, s 11

33 Rantzen v Mirror Group
Newspapers (1986) Ltd and Others 1994 QB 670

34 Courts and Legal Services Act 1990, s 8

35 ibid

36 Cooper v Evening Standard
& Associated Newspapers 2012

37 Louis Charalambous, ‘Luke Cooper’s case shows damage of abolishing
trial by jury in libel cases’, (The
guardian, 28 June 2012) https://www.theguardian.com/law/2012/jun/28/luke-cooper-trial-jury-libel
Accessed 10/12/2017

38 Ward v James 1966 1 QB 273,
CA

39 Joshua Rozenberg, ‘The libel reforms are a step in the right
direction – but do they go far enough?’, (The
guardian, 15 March 2011) https://www.theguardian.com/law/2011/mar/15/libel-reforms-step-campaigners-satisfied
Accessed 10/12/2017

40 Senior Courts Act 1981. s 69(1)

41 Tim Yeo MP v Times Newspapers
2014 EWHC 2853 (QB)

42 Sarah Boseley, ‘US company suing British doctor for libel goes out
for business’, (The guardian, 21
April 2011) https://www.theguardian.com/uk/2011/apr/21/us-company-suing-doctor-libel
Accessed 11/12/2017

43 Dan Wan, ‘Libel Torism Cases Stacking Up Against Peter Wilmshurst’,
(I, Science magazine of Imperial College,
6 April 2011) http://isciencemag.co.uk/blog/libel-tourism-cases-stacking-up-against-peter-wilmshurst/
Accessed 11/12/2017

44 Gordon Rayner, Chief Reporter, ‘How libel tourism became an
’embarrasment’ to Britain’s reputation’ (The
Telegraph, 23 February 2010) http://www.telegraph.co.uk/news/7301403/How-libel-tourism-became-an-embarrassment-to-Britains-reputation.html
Accessed 11/12/2017

45 The People of the State of California v Roman Raymond Polanski
1977 A334139

46 Libel Terrorism Protection Act (2008)

47 Sam Falconer, ‘Defamation Act 2013: what scientists need to know’,
(Time Higher Education, 16 January
2014)  https://www.timeshighereducation.com/comment/opinion/defamation-act-2013-what-scientists-need-to-know/2010434.article
 Accessed 11/12/2017

48 Daniel Cressey, ‘England’s libel laws reformed in a victory for
science campaigners’, (Nature, 24
April 2013) http://www.nature.com/news/england-s-libel-laws-reformed-in-a-victory-for-science-campaigners-1.12874
Accessed 11/12/2017

49 Reynolds v Times Newspapers
2001 2 AC 127

50 Defamation Act 2013, s 4

51 Defamation Act 2013, s 6

52 Defamation Act 2013, s 6(5)

53 Jameel v Wall Street Journal
Europe 2006 U.K.H.L. 44

54 Defamation Act 2013, s 4(6)

55 Seaga v Harper 2008
U.K.P.C. 9

56 Berezovsky v Michaels 2000
UKHL 25

57 Defamation Act 2013, s 9

58 Ahuja v Politika and Others
2015 EWHC 3380 QB

59 Karpov v Browder 2013 EWHC
3071

60 Ibid

61 Leo Benedictus, ‘Is this the end for Britain as a centre for libel
tourism?’, (The guardian, 15 October
2013) https://www.theguardian.com/media/shortcuts/2013/oct/15/end-for-britain-libel-tourism
Accessed 02/12/2017

62 South Hetton Coal Co. Ltd v
North Eastern News Association Ltd 1894 1 QB 133

63 Duke of Brunswick v Harmer (1849)
14 QB 185

64 Ibid

65 Loutchansky v Times
Newspapers Ltd 2002 QB 783

66 European Court on Human Rights, Article 10

67 Times Newspapers (Nos 1 and
2) v United Kingdom 2009 EMLR 14

68 Defamation Act 2003, s 8

69 Defamation Act 2003, s 5(5)

70 Limitation Act 1980, s 32A

71 Wolfson v Syracuse Newspapers
Inc 279 NR 716 (1936)

72 Firth v State of New York
2005 N.Y. LEXIS 1067

73 Defamation Bill HL (2010- 2012)

74 Daniel Cressey, ‘Libel win reveals need for reform’ (Nature, 10 July 2012) https://www.nature.com/news/libel-win-reveals-need-for-reform-1.10981
Accessed 20/12/2017

75 McDonald’s Restaurants v
Morris & Steel 1997 EWHC QB 366

76 Daniel Cressey, ‘England’s libel laws reformed in a victory for
science campaigners’ (Nature, 25
April 2013) http://www.nature.com/news/england-s-libel-laws-reformed-in-a-victory-for-science-campaigners-1.12874
Accessed 20/12/2017 

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