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Volume XII, Number 277

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The UK Defamation Act 2013 Comes Into Effect

The UK Defamation Act 2013 came into effect on 1 January 2014, along with the Defamation (Operators of Websites) Regulations 2013. The Act makes a number of substantive changes to the law of defamation but is not intended to codify the law of defamation into a single statute.

BACKGROUND

The UK Ministry of Justice has stated that the Act is intended to rebalance the law of defamation by ensuring effective protection for freedom of speech, whilst preserving the defamed individual’s right to protect his or her reputation. The Act came into effect through the Defamation Act (Commencement) (England and Wales) Order 2013 (SI 2013/3027). At the same time, the Defamation (Operators of Websites) Regulations 2013 also came into effect. These provide further detail on the applicability of the new defence available to website operators under the Act.

DISCUSSION

Requirement to Show Serious Harm Section 1 of the Act requires that claimants demonstrate “serious harm” in order to sue for defamation. It introduces the requirement that a statement was made that caused (or was likely to cause) serious harm to the claimant’s reputation, in order for it to be defamatory. This requirement is intended to discourage trivial claims and introduces a higher threshold than that originally proposed in the 2011 consultation paper of “substantial harm”. Where businesses wish to bring claims for defamation, they will need to demonstrate, more specifically, “serious financial harm”.

Statutory Defences

The Act introduces statutory defences of truth and honest opinion, to replace the common law defences of justification and fair comment respectively. The new statutory defences simplify and clarify certain aspects of the repealed common law defences. Broadly, however, they reflect the previous provisions. Under Section 2 of the Act, a defendant can invoke the defence of truth if it can be shown that the imputation conveyed by the statement in question is substantially true.

In addition, Section 4 of the Act introduces a statutory defence for those publishing material believed to be in the public interest, replacing the common law Reynolds defence, which it broadly reflects. Section 4 requires the court to have regard to all the circumstances of the case, and gives scope to the court to make appropriate allowances for editorial judgement.

Website Operators

Section 5 of the Act is intended to increase the protection for operators of websites that host user-generated content, by creating a new defence against defamation. The defence provides that operators will not be liable for defamation if it can be shown that it was not the operator who posted the statement on the website.

This is, however, subject to a number of caveats. The defence will be defeated if a claimant can show that it was not possible to determine who posted the statement, that the claimant gave the operator a notice of complaint in relation to the statement and that the operator failed to respond to the notice of complaint inaccordance with the Defamation (Operators of Websites) Regulations. Note that all three requirements must be fulfilled in order for the defence to be defeated.

In order to benefit from the defence, operators are required to follow the procedures set out in the Regulations upon receipt of a notice of complaint concerning allegedly defamatory material posted on their website. The Ministry of Justice has published guidance to facilitate operators complying with Section 5 of the Act and the process stipulated in the Regulations. The guidance provides information on what has to be included in a notice of complaint and the process to be followed by operators wanting to use the Section 5 defence having received a notice of complaint. The guidance is to assist complainants, website operators and individuals who have posted material that is the subject of a complaint.

Single Publication Rule

Prior to the Act, every publication of defamatory material gave rise to a separate cause of action, subject to its own limitation period. This has been reformed by Section 8, which introduces the single publication rule. Claimants are now prevented from bringing an action in relation to publication of the same material  by the same publisher after a one year limitation period from the date of first publication.

Trial by Jury

Section 11 of the Act removes the presumption in favour of a jury trial in relation to defamation cases.

COMMENT

The rationale behind the Act and the Regulations is to satisfy longstanding criticisms of defamation law as being unfair, costly and outdated. Despite being one of the most heavily amended sections of the Act, there is uncertainty regarding how the Section 5 defence for website operators will work in practice. The Act has also attracted criticism for not addressing the issue of costs, which is regarded by the UK Government as a matter to be dealt with by the Civil Procedure Rules Committee.

© 2022 McDermott Will & EmeryNational Law Review, Volume IV, Number 42
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About this Author

Boris Uphoff, McDermott Will Emery Rechtsanwälte Steuerberater, Munich Law Firm, Intellectual Property
Partner

Dr. Boris Uphoff is a partner in the law firm of McDermott Will & Emery Rechtsanwälte Steuerberater LLP based in its Munich office.   He is a member of the Intellectual Property Litigation Practice Group, where his practice focuses on trade marks, unfair competition, copyright, design rights and patents.  His work in these areas, mostly contentious, has included representing plaintiffs and defendants in infringement suits before all major commercial courts in Germany. 

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