Defamation Bill: Publishing without being damned

 

"Publish and be damned!"

These words were attributed to the first Duke of Wellington when the courtesan, Harriette Wilson, threatened to publish her memoirs and his letters.

It is the fate of being "damned" that the new legislation - in the form of the Defamation Bill - seeks to avoid for otherwise innocent media portals, such as newspapers and internet websites.

It is the classic argument around libel - defending free speech or defending against harmful false accusations.

The "Reynolds defence"

The Defamation Bill proposes to give statutory recognition to the "Reynolds defence," which can be raised when it is in the public interest to publish a statement, even if it turns out to be false. The defence comes from a House of Lords case involving the Irish politician, Albert Reynolds, and The Times newspaper.

The new proposals have twin aims of shielding newspapers and social networking sites, such as Facebook and Twitter, from claims made against them when defamatory statements are made by their users whilst making it easier to identify the authors of these statements.

Reforming agenda

In its response to consultation on the Defamation Bill in March this year, the Government confirmed its commitment to law reform and the Bill is widely expected to be in next year’s legislative programme.

If it is passed, it will represent the most radical overhaul of libel law for centuries. Gone will be the right to a jury trial - future cases will be heard by a judge sitting alone.

‘Honest opinion’ will be a defence to a statement, rather than the current requirement of proving ‘fair comment.’ Claimants will also be expected to justify their claim from the outset by showing that they have suffered significant harm, so the trivial and vexatious actions will no longer plague the courts.

High costs

Significantly, it is unlikely that the Defamation Bill will deal directly with costs, in spite of the controversy surrounding the issue.  At present, the increasing availability of Conditional Fee Arrangements, in which almost all the costs are only paid on success, has in many cases reduced the claimants’ risk to only a couple of thousand pounds to get the action started.

However, when the costs are eventually paid at the end of a successful case they can easily reach six figures, often dwarfing the compensation actually awarded.

It has been suggested that the risk of these high costs has had a ‘chilling effect’ on journalism, with media outlets being unwilling to risk publishing provocative statements even when it is in the public interest.

Other reforms

The Government is, however, pursuing a general reform of legal costs in all civil litigation and has said that, despite its unique features, it does not believe that defamation law deserves to be treated differently to other areas.

This is still under review however, and it would not be surprising for the final draft to include provisions extending the power for judges to cap costs or refuse to allow success fees to be added to costs awards.

Have you been a victim of libel or slander? Contact Law can put you in touch with a defamation law specialist to help you bring a claim. Please call us on 0800 1777 162 or complete the web-form above and we will call you back.

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