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.
- The statement was published
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.
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Hi Richard
I would like to use this blog in our staff newsletter if you would agree for me to republish it with a note to say you wrote it?
Would you mind me doing this?
I attended your defamation training last year.