Draft Defamation Bill

Tuesday 15th March 2011 Written Statements

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

The Government have today laid before Parliament a draft Bill on defamation for public consultation and pre-legislative scrutiny. This reflects the coalition commitment to review the law of libel to protect free speech.

There are real concerns that the threat of libel proceedings is being used to frustrate robust scientific and academic debate, and to impede responsible investigative journalism and the valuable work undertaken by non-governmental organisations. These concerns relate not only to cases which actually come before the courts, but also in relation to the chilling effect on freedom of expression that is created more widely by the threat of costly and protracted legal proceedings against defendants who may often have limited resources.

The proposals in the draft Bill and consultation paper aim to ensure that the right balance in the law is achieved, so that people who have been defamed are able to take action to protect their reputation where appropriate, but so that free speech is not unjustifiably impeded. We also want to look at ways of speeding court cases up, so as to cut the costs involved in defamation proceedings.

The draft Bill contains provisions on the following issues:

A new requirement that a statement must have caused or be likely to cause substantial harm in order for it to be defamatory;

A new statutory defence of responsible publication on matters of public interest;

A statutory defence of truth (replacing the current common law defence of justification);

A statutory defence of honest opinion (replacing the current common law defence of fair/honest comment);

Provisions updating and extending the circumstances in which the defences of absolute and qualified privilege are available;

Introduction of a single publication rule to prevent an action being brought in relation to publication of the same material by the same publisher after a one-year limitation period has passed;

Action to address libel tourism by ensuring a court will not accept jurisdiction unless satisfied that England and Wales is clearly the most appropriate place to bring an action against someone who is not domiciled in the UK or an EU member state;

Removal of the presumption in favour of jury trial, so that the judge would have a discretion to order jury trial where it is in the interests of justice.

Issues which have not been included in the draft Bill at this stage, but on which the consultation paper seeks views are:

Responsibility for publication on the internet. The paper seeks views on whether the law should be changed to give greater protection to secondary publishers such as internet service providers, discussion forums and (in an offline context) booksellers, or alternatively how the existing law should be updated and clarified;

A new court procedure to resolve key preliminary issues at as early a stage as possible, so that the length and cost of defamation proceedings can be substantially reduced;

Whether the summary disposal procedure should be retained, and if so whether improvements can usefully be made to it;

Whether the power of the court under the summary procedure to order publication of a summary of its judgment should be made more widely available in defamation proceedings;

Whether further action is needed beyond the proposals in the draft Bill and the introduction of a new court procedure to address issues relating to an inequality of arms in defamation proceedings, including whether any specific restrictions should be placed on the ability of corporations to bring a defamation action;

Whether the current provisions in case law restricting the ability of public authorities and bodies exercising public functions to bring defamation actions should be placed in statute and whether these restrictions should be extended to other bodies exercising public functions.

We believe that publication of a draft Bill for full public consultation and pre-legislative scrutiny will help us to achieve fully considered legislative proposals which focus on core issues of concern where legislation can make a real difference. After the consultation process is completed, we intend to introduce substantive legislation as soon as parliamentary time allows.