Prior to the reform ofDefamation Act 2013, the 1952 Act was aimed to strike a balance between thedamages and the functions of the judge.1 Then,coming to the 1996 Act was created to provide a clearer legislation on slanderand libel. However, these reforms did not solve the crucial issues on thebalance between freedom of expression and the protection of reputation inEnglish defamation law.2 The leading criticism of thelibel law is that the government does not prevent the ‘chilling effect’ onfreedom of speech. The Libel Reform Campaign has been requesting for a newlegislation since 2009.3 Moreover,campaigners have petitioned for a cheaper, simpler, and more modern law ondefamation.
This essay will examine the numerous problems with the old law suchas the risk of trivial claims, the rejection on sensible discussion and the vaguestatutory defences, in comparison with the reform of the Act.4 MikeHarris, whom is one of the campaigners, held that the new legislation will begood news towards free speech.5 The Act came into force from 1 January 2014. Accordingto Ministry of Justice held that it reversed “the chilling effect on freedom ofexpression” that the past libel law allowed.
6The main criticism is that thelaw in protection of reputation will always take effect with freedom ofexpression.7There are two forms of defamation, slander and libel. Slander is a transientstatement, which requires financial loss in establishing defamation. Libel is apermanent statement whereby it is actionable per se. Re the degree of one reputationcan affect a person free speech.
The protection of free speech is justifiable, themore permanent the statement can cause greater damage. Hence, it is importantto determine the degree of reputation of a person. The general rule of freedomof speech is provided by certain defences to defamation. Article 10(1)8 issubjected to certain derogations in Article 10(2), whereby one of it is theprotection of reputation.9However, it must be ‘prescribed by law’ and ‘a necessary democratic’.10 Thequestion is does the English law draw a balance between freedom of speech andprotection of reputation?Firstly, there arerequirements to receive protection and to establish a defamatory statement.
InLibel law, the burden of proof is on the claimant.11 Theymust be a reasonable person, whom with sufficient knowledge that the statementis referring to them.12 Moreover,the defamatory statement damages the claimant’s reputation,13by affecting the right-thinking members of society14. Theold law for libel was heavily criticized that it is in need to re-examine theirdoctrines of libel law.15 Itwas common that many well-known claimants can sue for a published defamatorystatement without lawful justifications.16 Itis argued that the old law does not prevent trivial claims for the defendant. InJameel case, the Judge agreed with the claimant even though he did not provethat the article was relating to him.17This showed that it undermined the requirement of a defamatory statement.
The act18 wascodified for the claimant to prove that the defamatory statement is likely tocause serious harm to their reputation.19 Oneof the objective of the new act is to prevent trivial claim, for exampleVictoria Beckham won a libel case against the defendant when she was considered”picky, demanding and rude.”20 Whichshe was being rewarded a substantial sum in damages due to the costly legalexpenses.21Hence, the claimant must satisfy the test in the court that there is a seriousharm to cause the company “serious financial loss”.22 Companyhas to go through a higher threshold to claim for defamatory damages.
It can bestated that the defendant will be braver to publish and criticize in theirarticles relating to certain companies.23Lord Scott held that many companies advertise and sponsor events since theircompany reputation is based on an asset of monetary value.24It is understandable that setting up a company, they must bear a burden onmaintaining their reputation so that they will not lose profits. It must be noted that thepresumption of a statement is true.
The primary defence is that damages willnot be awarded if there is a false reputation.25In comparison with s.5 of Defamation Act 195226, showedthat it is hard to prove a specific claim. Since it is presumed that everystatement is untrue, the defence will not fail.
The ambiguity of thelegislation makes it harder to provide a clear evidence and the cost charged inthe lawsuit. The old law discouraged people to prove even though the statementswere true. Therefore, the old law for faircomment is replaced by an honest comment in the act 2013.
27 Thiswould protect the opinions and statements of the person no matter howexaggerated it can be. Journalists and the press favour this position incomparison with the old law. The old law focused on the public interest, nowthe articles released by the journalists does not have to be in relation withthe public interest as long it is an opinion from an honest person.28 TheUnited Nations Human Rights Committee held that the old libel law was biasedtowards the writers, in publishing articles related to public interest.29 Although it can be stated that the commentdoes not have to be true. The jury has acknowledged that harsh comment may beconcerned with the public matters.
Lathan LJ held that the author does not haveto be refined in a manner to write an article. Since they are free to expresstheir honest opinions.30However, the defence will fail if there is malice.
31 It must be noted that the jurytrials have been abolished in the 2013 act.32The new act has given a chance to remove the presumption of defendants. Priorto the reform, libel juries were heavily criticized on the high amount ofdamages being rewarded to them in the civil proceedings.33Lord Justice Neill has given a judgment to the Court of Appeal to order for anew trial based on Jury damages.34 Section8 has included ‘proper’ awards, the awards must be reasonable and proportionateto be justified in establishing damages in reputation. The Court of Appeal hadprovided a principle that it must be in line with the right to freedom ofexpression when it is at stake.35 Although Luke Cooper hasargued that there will be a damage in abolishing jury trials in libel cases.
36He has stated that judges favour barristers therefore, it created complexitiesin the cases. Which will lengthen the duration of the case, and increase thecost of litigations.37However, it can be argued that jury trials are often costly which they do notprovide a proper judgment since jury is based on the question of facts.
LordDenning held that certain cases are not meant for jury trials.38The Conservative justice secretary’s libel reforms has stated the objective ofthe reform will provide cheaper and fairer libel cases.39It should be noted that the jury trial has not being completely abolish.Section 69(1) of Senior Courts Act 198140allowed the court to exercise it discretion to call for jury trials.41 More importantly, DefamationAct 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 wassued in proving his research on the malfunctioning of a heart device by USmanufacturers in libel.
42 Thiscase was criticized that the US NMT medical should not intervene with the UKcase, since the cardiologist was based on the UK subsidiary and regulationshere.43 It can be argued that the oldlaw does not provide proper protection on libel tourisms, hence it contributedto trivial defamation cases. The Telegraph has described that libel tourism isan ’embarrassment’ in the UK.44Many 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 libeltourisms except for whether the foreign law grants the First Amendmentprotections.46In the UK, this led to a group of scientists formed The Libel Reform Campaignto protect their scientist reviews from legal threats.47 Simon Singh, one of the campaigner, hasstated that there must be a need for a better protection on public interest defence.
48 The common law defence of Reynoldtest49was replaced by Section 4 as an independent defence in the public interest.50 Itbenefits the scientists or academic journals in publications relating to thepublic interest.51However, privilege will only be applicable if it is fair and accurate.
52 Thecourt has reinforced the principles in Jameel case,53whereby the published materials must be related to the public interests.54Since the application of Reynold’s test was confined, it created confusion in the courts.Previously, the protection of reputation weighed more than the freedom ofexpression in the privilege defence.
Lord Hoffman held that judges should notmake decisions based on hindsight of the case.55Libel tourists were one of theweaknesses for the old defamation law.56Parliament intended to prevent ‘libel tourism’ under Section 9 of the reform.
57 Theclaimant must provide full disclosure of the facts and it is the court’sdiscretion to accept an action that can bring proceeding in England and Wales.58In Magnitsky case,59 aMoscow policeman sued against a UK manager on false accusation of Magnitskydeath during the police custody, but the court strikes the case, which there isno connection for the plaintiff to defend his reputation in the UK.60 Itcan be stated that this has limited the court jurisdictions on libel tourism inthe UK, the burden of proof shift to the defendant and individuals mustdemonstrate the likeliness to suffer ‘serious’ harm or financial loss in theUK.61The old law does no justice tothe publishers in repeatedly publishing the same defamation articles. Moreover,there is a grey area when it comes to online articles publications.62The legislation was not updated while the internet has developed, and many onlinearticles were published by the media and journalists over the world. In Duke ofBrunswick case, it gave claimants many opportunities to sue the third party orthe original publisher in a repeated defamatory statement.63 Whichhas formed a chain of legal threats towards the media.
64It can be stated that there is no balance on the right of freedom of expressionand protection of reputation. This common law legislation left anunsatisfactory decision towards the defendants. The Court of Appeal held thatthere is an unjustified restriction on freedom of expression in Loutchanskycase.
65 Moreover,the court has stated that under article 10,66libel action has interfered with the freedom of expression by the press inTimes Newspapers v UK.67 However, the reform has mostlyended the liability for online publishers.68 Although,online statements could bring attention after the limited set period. It isarguable on the level of distinction in a statement69,and it is a discretion of the court to allow the claim.
70In the US, the court has rejected multiple publication rule long before thereform,71it was observed that the old rule creates greater potential for countless casesof defendants.72It could be argued that in a legal theory, it is difficult to justify with thenew act, every new person reads the libel statement after a publication of amatter. Therefore, Parliament set a limit on the main issue, however it shouldbe dealing with the mischief of the reform instead of creating anotherprovision to deal with the reform.73 In conclusion, the reform hasalso amended the public interest defence to deal with the lack of legal aid indefamation law.74It can be seen in McLibel case, the damages were costly in an unfair trial andthe reform of the provision has reduced the cost of litigation.75The 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 expressionand right to reputation.76 1 David Erdos, “Data Protection and the Right to Reputation: Fillingthe “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 08/12/20172 European Court of Human Rights, article 83 ‘Defamation Act 2013 aims to improve libel laws’ (BBC News, 31 December 2013) http://www.bbc.
co.uk/news/uk-25551640Accessed 08/12/20174 Defamation Act 20135 Ibid6 Ministry of Justice and The Rt Hon Lord McNally ‘Defamation Actreforms libel law’ (Gov.uk, 25 April2013) https://www.gov.uk/government/news/defamation-act-reforms-libel-lawAccessed 08/12/20177 European Court on Human Rights, Article 108 Defamation Act 2013, Article 10(1)9 Defamation Act 2013, Article 10(2)10 Ibid11 Sim v Stretch 1936 52 TLR66912 Morgan v Odhams Press Ltd1971 1 W.L.
R. 123913 Defamation Act 1996, s 114 Lewis v Daily Telegraph1964 A.C 23415 Duncan Campbell, ‘British Libel Law violate human rights, say UN’ (The guardian, 14 August 2008) https://www.theguardian.com/uk/2008/aug/14/law.unitednationsAccessed 08/12/201716 Frankie Boyle v MGN Ltd2012 EWHC 2700 (QB)17 Jameel v Dow Jones &Co Inc 2005 EWCA Civ 75.
18 Defamation Act 2013, s 119 Defamation Act 2013, s 1(2)20 McManus v Beckham 2002 EWCACiv 939 21 Ibid22 Thornton v Telegraph MediaGroup 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 08/12/201724 South Hetton Coal Co.
Ltd vNorth-Eastern News Association 1894 1 Q.B. 13325 M’Pherson v Daniels 1829EngR 13126 Defamation Act 1952, s 527 Defamation Act 2013, s 328 Joseph v Spiller (2010) UKSC5329 United Nation Economic and Social Council, Civil and PoliticalRights, Including The Question Of Freedom of Expression, 2004, E/CN.4/2005/64https://documents-dds-ny.un.org/doc/UNDOC/GEN/G05/106/90/PDF/G0510690.pdf?OpenElement Accessed 08/12/201730 Branson v Bower (No.
2) 2002Q.B. 73731 Ibid32 Defamation Act 2013, s 1133 Rantzen v Mirror GroupNewspapers (1986) Ltd and Others 1994 QB 67034 Courts and Legal Services Act 1990, s 8 35 ibid36 Cooper v Evening Standard& Associated Newspapers 2012 37 Louis Charalambous, ‘Luke Cooper’s case shows damage of abolishingtrial by jury in libel cases’, (Theguardian, 28 June 2012) https://www.theguardian.com/law/2012/jun/28/luke-cooper-trial-jury-libelAccessed 10/12/201738 Ward v James 1966 1 QB 273,CA39 Joshua Rozenberg, ‘The libel reforms are a step in the rightdirection – but do they go far enough?’, (Theguardian, 15 March 2011) https://www.theguardian.
com/law/2011/mar/15/libel-reforms-step-campaigners-satisfiedAccessed 10/12/201740 Senior Courts Act 1981. s 69(1)41 Tim Yeo MP v Times Newspapers2014 EWHC 2853 (QB)42 Sarah Boseley, ‘US company suing British doctor for libel goes outfor business’, (The guardian, 21April 2011) https://www.theguardian.com/uk/2011/apr/21/us-company-suing-doctor-libelAccessed 11/12/201743 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 11/12/201744 Gordon Rayner, Chief Reporter, ‘How libel tourism became an’embarrasment’ to Britain’s reputation’ (TheTelegraph, 23 February 2010) http://www.telegraph.co.
uk/news/7301403/How-libel-tourism-became-an-embarrassment-to-Britains-reputation.htmlAccessed 11/12/201745 The People of the State of California v Roman Raymond Polanski1977 A33413946 Libel Terrorism Protection Act (2008) 47 Sam Falconer, ‘Defamation Act 2013: what scientists need to know’,(Time Higher Education, 16 January2014) https://www.timeshighereducation.com/comment/opinion/defamation-act-2013-what-scientists-need-to-know/2010434.article Accessed 11/12/201748 Daniel Cressey, ‘England’s libel laws reformed in a victory forscience campaigners’, (Nature, 24April 2013) http://www.nature.com/news/england-s-libel-laws-reformed-in-a-victory-for-science-campaigners-1.12874Accessed 11/12/201749 Reynolds v Times Newspapers2001 2 AC 12750 Defamation Act 2013, s 451 Defamation Act 2013, s 652 Defamation Act 2013, s 6(5)53 Jameel v Wall Street JournalEurope 2006 U.
K.H.L. 4454 Defamation Act 2013, s 4(6)55 Seaga v Harper 2008U.
K.P.C. 956 Berezovsky v Michaels 2000UKHL 2557 Defamation Act 2013, s 958 Ahuja v Politika and Others2015 EWHC 3380 QB59 Karpov v Browder 2013 EWHC307160 Ibid61 Leo Benedictus, ‘Is this the end for Britain as a centre for libeltourism?’, (The guardian, 15 October2013) https://www.
theguardian.com/media/shortcuts/2013/oct/15/end-for-britain-libel-tourismAccessed 02/12/201762 South Hetton Coal Co. Ltd vNorth Eastern News Association Ltd 1894 1 QB 13363 Duke of Brunswick v Harmer (1849)14 QB 18564 Ibid65 Loutchansky v TimesNewspapers Ltd 2002 QB 78366 European Court on Human Rights, Article 1067 Times Newspapers (Nos 1 and2) v United Kingdom 2009 EMLR 1468 Defamation Act 2003, s 869 Defamation Act 2003, s 5(5)70 Limitation Act 1980, s 32A71 Wolfson v Syracuse NewspapersInc 279 NR 716 (1936)72 Firth v State of New York2005 N.Y.
LEXIS 106773 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-1.10981Accessed 20/12/201775 McDonald’s Restaurants vMorris & Steel 1997 EWHC QB 36676 Daniel Cressey, ‘England’s libel laws reformed in a victory forscience campaigners’ (Nature, 25April 2013) http://www.nature.com/news/england-s-libel-laws-reformed-in-a-victory-for-science-campaigners-1.12874Accessed 20/12/2017