Defamation law reform in the United Kingdom: Public interest edition

Jack Straw yesterday announced three proposals to reform English defamation law, which has long been considered one of the most plaintiff-friendly in the world. The proposals are designed to curb perceived ‘libel tourism’ by foreign magnates, sheikhs and oligarchs, who have used English courts to stifle criticism in publications whose distribution within the United Kingdom is incidental.

If the proposals are adopted by Parliament (which would not occur until after the general election), three main changes would be made to the law:

  • single publication rule: unlike American law, UK (and Australian) defamation law views a separate tort as being committed whenever defamatory material is published (which is to say, communicated) to another (see Duke of Brunswick v Hamer); thus, each separate pageview of a defamatory website is, technically, a separate libel, with the effect that an online newspaper archive could face indefinite liability, since the limitation period restarts with each new impression (as occurred in Loutchansky v Times Newspapers Ltd [Nos 2–5]). Under the proposal, plaintiffs will be able to bring a single action in respect of a defamatory allegation, and will be required to do so within one year of the original publication, subject to discretionary extension by the Court.
  • public interest defence: currently there is no general defence to a claim of defamation that publication was ‘in the public interest’ (though this is a relevant factor in relation to certain forms of qualified privilege, and in relation to the Reynolds privilege). According to the announcement, ‘consideration will be given’ to a general defence of this nature. This seems problematic, since the notion of what is in the public interest is rarely beyond dispute, meaning that this defence won’t provide certainty to investigative publishers. Moreover, the burden of proof still rests on the defendant.
  • stronger requirements for service outside the jurisdiction: the Civil Procedure Rules will be strengthened (though in precisely what form is unclear) to make it more difficult to obtain an order for service outside the jurisdiction where allegedly defamatory materials have been published abroad but are accessible in England.

In an op-ed published in yesterday’s Guardian, Mr Straw commented:

The last thing I want to see is our libel law being used to bring our legal system’s reputation into disrepute. From people bringing their claims in English courts despite there being little or no link to this country, to the high costs of defending a court case discouraging journalists and editors from pursuing and publishing stories the public should know about — these have a chilling effect on freedom of expression and are matters of concern to us all.

Campaigners have praised the proposed reforms, as have journalists. However, while they certainly seem like a step in the right direction, there are some conspicuous omissions. Issues of burden of proof seem to have been ignored (currently, unlike in any other civil action, the defendant bears the burden of proving truth, rather than being on the plaintiff to prove falsity), as have issues facing scientific and academic researchers (it is unclear whether purely academic interests would fall within the proposed ‘public interest’ defence).

Defamation reform is an increasingly hot topic in the United Kingdom, but it’s unclear whether this is anything more than ‘pre-election posturing’. The Tories have indicated strong support for the reforms, but are expected to release their own Green Paper on defamation reform later in the month. We’ll see whether anything comes of it.

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