The Government’s draft Defamation Bill published today goes a long way to sorting out libel – but not far enough.
The good things it proposes are:
- The claimant shall prove they were substantially damaged or were likely to be substantially damaged by the statement – now the claimant does not have to prove either;
- There should be a new defence of “responsible publication” rather like the Reynolds defence in common law;
- There should be a new defence of “truth” replacing the “justification” defence;
- There shall be a new defence of “honest opinion” replacing the current “fair/honest opinion”; and
- There should be a test to see if the English and Welsh courts are “the most appropriate” place to hear the case.
Calls for comments
The Bill also asks for more comments from interested parties to see if the following should be included:
- Corporations should not sue individuals; and
- That the limit of 1 year should only apply to the first publication, not the storage of publications in archives, including online archives.
In all, the Bill asks 43 questions for consultation.
I am surprised how far the Government is willing to go. The need to prove “substantial damage” is a good one. The defence of “responsible publication” is also good. But the Bill does not go far enough.
What’s also needed
It should have included:
- The claimant should have to swear in Court the statement is false – this would open them up to perjury if they lied; and
- The claimant should have to prove they were actually damaged, rather than likely to be.
But, so far, so good.