9.

‘The Defamation Act 2013 achieved much needed reform

of the common law, discuss.
Answer:
The Defamation Act 2013 came into force on the 1st January 2014 achieving a
much needed reform of the common law. The overall aim of Libel Reform
campaign and the act and was to rebalance the law towards protecting freedom of
speech and the changes brought by this Act will be discussed accordingly. The Act
tends to protect the reputation against untrue statement in either permanent for-
LIBEL or non-permanent form- SLANDER (MCMANUS v BECKHAM). It also
reverses the in presumption regarding mode of trial to judge than jury as per S11 of
the Act making disproportionate damages being awarded curtailed (RANTZEN).
Before the act was imposed the law surrounding defamation was held to be too
claimant friendly which led to rise of ‘libel tourism’. Claimants from other
jurisdictions came to UK hoping to have a judgment in their favour. The enactment
of SECTION 9 had solved this problem as now for the claimants who are outside
of the EU or EEA, the court will not have jurisdiction to hear a libel claim unless it
is satisfied that England and Wales is the most appropriate forum. The courts have
also hardened towards these sort of cases and now there is a statutory framework to
support the disapproval of this practice (BIN MAHFUZ v EHRENFLED).
To remove the clogged situation of the courts because of the huge number of cases
the ‘serious harm’ requirement was imposed by the DA. As per S1 of the Act a
statement will only be defamatory if he or she can prove that it was likely to cause
serious harm to the reputation (THORTON v TELEGRAPH MEDIA GROUP).
The statement should be directed towards the D directly or it is also enough to
show that a reasonable person having knowledge can understand the meaning of it
(MORGAN v ODHAMS PRESS). It also gives defences in case if the statement
contains a damaging Innuendo. Mere, insults or abuse are not defamatory
(SPILLER v JOSEPH). The same section requires the proof of financial loss in the
case of profit making bodies to avoid a long running saga seen in (STEEL and
MORRIS). David Hooper in is article ‘DEFAMATION ACT 2013- WHAT
DIFFERENCES WILL IT REALLY MAKE’ believes that the requirement of
serious harm will struck out a huge number of cases and the enormous amount of
trivial libel actions can be stopped. It will also assist the process of pre-publication
advice.
Section 2 of the Act replaces the old common law defence of the justification with
an equivalent defence of truth. However, the position that the defendant to prove
that the statement was substantially true still remains. Damages should not be
awarded for injuring a false reputation (DANIELS). S3 replaced the common law
defence of honest comment with honest opinion (SPILLER v JOSEPH). A danger
in the fact that the legislature has substantially restated the common law is that it is
unclear what the legislature meant to change. The defence will fail if the maker
subjectively does not honestly hold the opinion.
The English law was very reluctant to extend the defence of qualified privilege.
The ten points test by Lord Nicholls had a great impact in failing the defence
claim. The publication on a matter of public interest S4 replaces the common law
defence of Reynolds qualified privilege which protected responsible journalism.
To get the defence it needs to be shown that the statement is of public interest or
the D should reasonably believe it to be. There are two tenable interpretations of
the act. The belief should be based on rationale grounds and the defence will fail if
the belief was proven to be irrational or false. Another, would be to apply the same
analysis to decide if the belief was reasonable rather analyzing if the journalism
was responsible. The second approach seem to be representing the intention of the
Act more than the first one supporting Lord Mc Naily’s statement to look at many
of the same consideration. Thus S4 codifies the Reynolds and subsequent
developments of these principles in (FLOOD). Tom Rudkin in his artile ‘AFTET
THE FLOOD –ARCHIEVES AND THE DEFAMATION ACT 2013’ expressed
that there are many ways to publish a statement online and the publisher should
reasonably believe that the statement was of public interest and he should have
evidence to support otherwise he would not get any defence.
S5 deals with the website operators where they can show they did not post the
defamatory statement. This section is in response to the previous common law
where the law requires the publisher’s status of internet service provider as
outlined in (PAYAM TAMIZ v GOOGLE) and (DEMON INTERNET). Which
shows how the law should response in the current era.
In case of scientific community there can be vast amount of research which can be
very controversial. S6 creates a niche category of qualified privilege if the
statement relates to a scientific or academic matter which has been subjected to a
independent review as to its scientific/ academic merit. Farrah and co, in
‘DEFAMATION ACT 2013 A QUICK OVERVIEW’ suggested that it is of
importance that there should be the liberty to publish a statement if the matter is
regarding scientific or academic however, its significance is limited (BRITISH
CHIROPACTIC ASSOCIATION v SINGH).
S8 is the most important with regards to the internet which replaced the single
publication rule established in the 1849 from the case of (HARMER). A statement
republished by the original author and the republication is the same as the original
publication a new course of action will not be triggered (LOUTCHANSKY). This
was regarded as one of the most important rule in the article of Jennifer Adgate –
‘THE DEFAMATION ACT 2013- KEY CHANGES FOR ONLINE’. In this
article she stated that it has reduced to undertake the costly and time consuming
exercise of monitoring archive. Although there are some unanswered questions
making this law easy to trigger a new publication.
The changes were much needed to stop the huge number of cases being filed and
clogging the court process. The changes brought by this Act has undoubtedly made
the law a lot more strict and stable and clear. Howard Johnson in his article
‘DEFAMATION ACT- REFORM OR TINKERING? Stated that the reforms do
not go so far as to move towards p the American-style liability, or more accurately
non-liability, based on the US Supreme Court decision in (NEW YORK TIMES v
SULLIVAN). The new law focuses on the substantive changes to the law and does
not deal with some of the significant procedural and cost barriers that remain to be
overcome in bringing a libel action.

4. Joy River Cruises is a small business owned by Ethel Grandison. Joy

River cruises operates two-hour long trips along the River Thames.
Ethel owns only one sailing vessel, which can carry up to 20
passengers. As a result of a recent collision with another boat, Ethel
needed some routine and straightforward maintenance carried out on
her boat. She hired Sailing Right, a local boat builder and repairer, to
carry out the works. Unfortunately, the work was carried out by Tina, a
very new and experienced apprentice, who failed to carry out basic
testing of the boat before certifying it ready for the usual river trips.
On the occasion in question, Ethel had just admitted the twentieth
customer on to the boat when a couple (Jack and Harriet) with two
young twins (Sally and Finn), aged 7, pleaded to come on board, saying
they would be happy to sit on the floor of the boat. After some coaxing
Ethel agreed but informed Jack and Harriet that Joy River Cruises
would take no response bility for any personal injuries, property
damage or other loss. Thirty minutes into the trip, the boat began to
sink as a result of Tina’s inadequate repair. Ethel distributed lifesaving
equipment but seven of the life jackets were old and failed to inflate
properly. James, who was given one of the faulty life jackets, drowned.
Unknown to Ethel, Sally and Finn had evaded their parents 10 minutes
into the trip and had hidden under some heavy canvass piled at the
back of the boat. The boat sank before they could be discovered and
Sally and Finn also drowned. Advise all parties as to their rights and
liabilities under the Occupiers’ Liability Acts of 1957 & 1984.

Answer:
Occupier’s liability Act (OLA) concerns the liability of an occupier of land or
premises for the injury, loss or damage suffered by the claimant while being on the
occupier’s premises. Occupiers’ Liability Act 1957 (OLA 1957) which prescribed
the occupiers’ duty to their lawful visitors. The duty towards unlawful visitors is
set out in Occupiers Liability Act 1984 (OLA 1984). I will be advising all parties
(James, Sally and Finn) as to their rights and liabilities under the occupiers’
liability Acts of 1957 and 1984.
According to the common law an occupier is a person who controls the premises
(WHEAT v LACON & CO). In this scenario Ethel Grandison (E) is the owner and
as he has taken the decisions regarding the fixing and the passenger number it is
clear that he has the legal control and also ownership. Thus E is the occupier of the
boat. S1(3)(a) of the Act states that it is not just land or buildings but also mobile
and temporary structures that can be counted as premises – in this case the boat
(WHEELER v COPAS). Also, (SUTTON LONDON v HOUSE OF LORDS)
states that boat can be counted as a premises. The injury suffered by James (J),
Sally & Finn (S&F) was because of the defective state of the boat (OGWO v
TAYLOR).
J was a lawful visitor as he had the permission to ride the boat and the time limit
was for two hours (CALGRATH). Being a lawful visitor James’s claim will be
dealt under the OLA 1957. James might claim for two reasons. According to
S.2(2) of OLA 1957 being the occupier of the boat E had to make sure that he had
taken reasonable care to ensure that the visitor is reasonably safe using the
premises (FERGUSON v WELSH). The boat had a collision which made the boat
defective. He did not check if the boat was functioning good enough to carry
passenger which he should have done. As for the jackets he should have also taken
care of them or at least checked if the old jackets were able to function properly or
they were defective too. He had clearly breached his duty of care (BOLAM) as E
did not take any necessary steps to prevent the harm caused to the passengers
(BEATON v DEVON). There was no sign of warning or notice given that the boat
and life jackets might be defected to exclude the liability (ROLES v NATHAN).
Thus, E can be liable for being at fault. However, S2(4) provides a list of situations
in which an occupier will not be liable for a harm caused by an independent
contractor. Though to rely upon this section three conditions must be satisfied.
Firstly it was reasonable to entrust the work (HASELDIN v DAW). As the boat
needed some maintenance carried out it was reasonable to hire the Sialing Right, a
local boat builder. Secondly, the independent contractor was competent enough
(WALSH). The question clearly states that Tina was new but rather experienced
and was given the job by the company itself. As the company was local and it
highly likely small business owners would look for local services. Thus the
company is likely to be competent if not the defence will fail and E will be solely
liable. It is for the judge to decide whether the company itself was competent or
not. Lastly, E had failed to check the work done by the independent contractor
(WOODWARD). Rina had failed to carry out her work perfectly. However, if E
had checked before carrying the passengers then the accident would not have
happened. There was no technical knowledge required (HASELDINE) as he could
have taken a ride himself or asked Tina if the boat was functioning perfectly.. Also,
he did not check the jackets and thus because of the fault from E’s side the
independent contractor is unlikely to be liable. E is highly likely to be liable under
OLA 1957.
Second party would be S&F who are also lawful visitors as they were permitted by
the occupier to be on the boat (CALGRATH). S2(3)(a) states that children are less
careful than the adults and a greater of care is required to keep them from harm.
Here, it is clearly indicated that E did not want to take the children after he had
completed the quota of taking 20 customer. The patents were forcing E to take the
children in. E had clearly mentioned that they would be the responsibility of their
parents. Now following the case of (PHIPPS v ROCHESTER CORPORATION)
parental responsibility cannot be shifted towards the occupier. S&F evaded their
parents and they were sitting under some heavy canvas piled under the boat. E can
also rely on the defence of contributory negligence. The parents did know that the
boat had already been filled up with the required amount of passengers and they
will only be extra. Still they did acted poorly around the risk. Thus it is likely that
E will not be liable and if the argument goes against him he can rely on the defence
also.