Libel: out with the old and in with the new in Defamation Act 2013

It’s out with the old and in with the new for English and Welsh libel as a result of the Defamation Act.

In comes:

• The need for the claimant to prove the statement caused serious harm  or is likely to cause serious harm;
• The need for a profit-making operation to prove the statement caused serious financial loss or  is likely to cause serious financial loss;
• The need for the claimant who is not domiciled here to prove the courts here are the right place to take the action;
• A single publication rule: the limitation of 1 year applies to the first publication of the statement complained of, not subsequent publications of it; and
• A defence of “truth”; the statement is “substantially true”
• A defence that the statement is in the public interest; and
• A defence that the statement is in a peer-reviewed scientific or academic journal.

Out goes:

• The defence of justification;
• The Reynolds defence;
• The defence of fair comment to be replaced by honest comment

The overall picture is now:

• The claimant must prove:
  • The statement was published
    • What it means
    • It was sufficiently published
    • They were identified
    • It is defamatory of them
    • They were seriously damaged or are likely to be seriously damaged or, if trading for a profit, were caused serious financial harm;
    • The defences are:
      • It is substantially true;
      • It is an honestly held opinion;
      • It is on a matter of public interest;
      • It is in a peer-reviewed journal;
      • It is a privileged statement because it is the report of a court action etc.

Still to be resolved by the courts as they apply this new Act are:

• What does “serious harm” mean; and
• What does ”substantially true” mean.

But don’t forget that the old unreformed law still operates in Northern Ireland and much the same in the Irish Republic.

Win a free e-learning course by entering our picture-caption competition