A warmer New Year for everyone?


Phil Gorski

The Defamation Act 2013 (‘the Act’) is now in force.  The government has hailed its arrival as a sea-change in English (and Welsh) defamation law and proudly claimed that it will reverse the so-called ‘chilling effect’, the negative impact, of the old law on freedom of expression in this country.  But what do the new changes mean and will the Act be the warm wind that many people believe is needed to blow away the chill?  In this first part of a three-part blog, we look at a few of the more prominent developments.

The Duke of Who?

In what is perhaps the most obvious example of modernisation, the Act removes a rule of English defamation law established by a case decided nearly 170 years ago and brought by the Duke of Brunswick, an eccentric Prussian aristocrat who was unceremoniously ejected from his lands by his own subjects.

The rule, which became known as the multiple publication rule, basically said that the same defamatory material could be published on more than one occasion.  In this case, the Duke had sent one of his own staff to buy a copy of a magazine containing the defamatory material 17 years after it had originally been published and it was decided that this amounted to a new publication.  Regardless of the rights and wrongs of that particular case, the rule really came to the fore with the advent of the internet – applying the Duke of Brunswick concept in a modern context, the English courts said that each time material on a web page was accessed amounted to a fresh publication too, regardless of when the original material was actually put up for the first time.

The Act finally does away with this anachronism and introduces a ‘single publication rule’ which means that a claimant will not be able to bring an action in relation to publication of the same material by the same publisher after the expiry of a one-year limitation period from the date of the first publication.

Serious harm only

The Act also tries to prevent people bringing trivial claims in relation to statements which cause only negligible damage.  The courts have developed their own system of dealing with this over the years but the Act introduces a new test, that a statement must have caused (or be likely to cause) serious harm to the claimant’s reputation.  Again, it will take some time for the courts to settle on a clear definition of just what ‘serious harm’ is but simply using a dictionary definition it seems that the threshold should be a meaningful hurdle to overcome.

More important though is the effect of the test on businesses.  There has been a public perception of large corporations using their deep pockets and defamation law to silence unwanted critics for a long time.  The Act tries to prevent this by saying that, in the context of a business, ‘serious harm’ means ‘serious financial loss’.  What this means is that if a business wants to sue for libel it must be able to show either that it has suffered serious financial loss or that it is likely to do so.  The definition of this phrase will almost certainly be a battleground for lawyers this year, not only in terms of the meaning of ‘serious’ and ‘financial loss’ but also in terms of just how any likely future loss might be proven.

We’ll look at further changes in part 2 but in the meantime a word of warning: the Act only applies to material published for the first time on or after 1 January 2014.  In respect of anything published in the preceding year, it’s very much as you were.

Phil Gorski
Commercial Dispute Resolution Department
0113 2279 318

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