DEFAMATION ACT 2013 IP and Media Law

RELEVANT FOR An overview of defences

WORKSHOP 3
and the “chilling effect”
WHY IS DEFAMATION LAW
SO DANGEROUS?
THE LEGAL LANDSCAPE
– RECAP ECHR
Article 10(1)-
‘…receive and impart information…’ the public watchdog function of the
media

Article 10(2)-
restricts10(1) to what is permitted in accordance with the law and necessary
in a democratic society ‘for the protection of the reputation or the rights of
others’
Sunday Times v UK (1980) 2 EHRR 245
ONLY TO EXTENT NECESSARY TO PROTECT THE RIGHTS OF OTHERS
AN EQUAL
BALANCE?

Prior to 2013 Defamation Act it was believed that the

burden of proof in defamation actions favoured the
claimant. The action was relatively easy to establish and
the defences were complex, technical or hard to prove.
FALSE INNUENDO – NEW
CAUSE OF ACTION
AGAINST REPEATER

Why is Lord McAlpine trending? *innocent face*

McAlpine v Bercow [2013] EWHC 1342

BBC (£185,000) & ITV (£125,000) paid damages but tweet ‘…

pointed the finger of blame during a media frenzy’
THE ‘CHILLING EFFECT’
LORD KEITH
What has been described as "the chilling effect" induced by the threat
of civil actions for libel is very important. Quite often the facts which
would justify a defamatory publication are known to be true, but
admissible evidence capable of proving those facts is not available.
This may prevent the publication of matters which it is very desirable
to make public.
Derbyshire CC v Times [1999] AC 534
JIMMY
SAVILE
Rumours were widespread while Savile was
alive.

Could defamation law have ‘chilled’ the media

from fulfilling their public watchdog function
during his lifetime?

https://www.theguardian.com/world/2018/sep/
14/bookshops-threatened-with-legal-action-jho
-low-billion-dollar-whale
PROBLEMS - EXERCISE
FOR WORKSHOP 3
Begin to conduct your own research into the chilling effect in
preparation for workshop 3
 MAJOR DEFENCES
S 2 TRUTH
S 2 defence of Truth (replacing Justification which was abolished by s
2(4)).

A defamatory statement is presumed to be false.

The defendant must prove that it is true in order to establish the defence of
Truth

No defamation where each statement (not the whole article) complained

about is substantially true as long as any minor untrue imputations do not
seriously harm the claimant’s reputation.
S 2 TRUTH
Stern v Piper [1997] QB 123- –Rumours/hearsay

Simpson v MGN [2016] EWCA Civ 772-

Defendant must prove the truth of the defamatory sting. The sting is
usually the same as the meaning. But not always. The meaning of a
defamatory statement does not necessarily establish the intensity of
its sting.
Serafin v Malkiewicz [2017] EWHC 2992 (QB)
The truth of each defamatory meaning must be proved. It is not
sufficient to prove that the article as a whole is substantially true.
REASONABLE
JOURNALISTIC
STANDARDS
Carry out such enquiries and checks as is reasonable to expect
Yeo v Times Newspapers Ltd [2015] EWHC 3375 (QB), [2017]
E.M.L.R. 1, [2015] 11 WLUK 658

Have a credible reason for not contacting the claimant prior to

publication of a potentially defamatory article for comment prior to
publication
Economou v de Freitas [2018] EWCA Civ 2591
S 2 TRUTH PRACTICAL
DIFFICULTIES EXERCISE
FOR WORKSHOP 3
MAJOR DEFENCES: S3
HONEST OPINION
S3 defence of Honest Opinion for statements of opinion
(replacing defence of fair/honest comment abolished by s
3(8)).
Key features:

 Removal of requirement that the comment must be on a

matter of public interest. This is no longer necessary
 Supposed simplification of the defence (see next slide)
SIMPLIFICATION OF
DEFENCE UNDER S3
Defendant must show material is
1. An expression of opinion (as opposed to a statement of fact). S3 only applies to
expressions of opinion

2. The opinion Indicates its factual basis at least in general terms, and

3. The opinion could be held by an honest person on the basis of any proven fact
that existed at the time (the underlying fact is something the defendant must prove
to be true but the truthfulness of the opinion itself does not have to be proved)
If the above are established defence will succeed, unless……..
SIMPLIFICATION OF
DEFENCE UNDER S3
Unless…

The claimant proves that the defendant did not in fact hold the opinion

If the claimant proves this the defence will fail.

FACT OR OPINION –
REASONABLE PERSON TEST

• DEFENCE OF
FACT TRUTH – fact at the
time not as it later
emerges

• DEFENCE OF
OPINION/ HONEST OPINION
COMMENT
– D must hold that
opinion
THINKING POINTS
How simple do you find the Honest Opinion defence?

How easy is it to distinguish fact from opinion?

PUBLICATION ON
MATTERS OF PUBLIC
INTEREST
S4 introduces a statutory defence of public
interest. S4(6) abolishes the common law defence
of Reynolds Privilege.

“[s4] is intended to reflect the common law, whilst strengthening freedom of speech by
removing a perceived tendency on the part of courts to rely on checklists and
emphasising the potential importance of editorial discretion.”
James Price and F McMahon, Blackstone’s Guide to the Defamation Act 2013 (OUP
2013) 62

We will do more work on the defence in the workshops and in the next lecture.
This lecture is only an overview.
KEY FEATURES OF
STATUTORY DEFENCE
2 REQUIREMENTS
 S 4(1)(a) the statement complained of was, or formed part of, a
statement on a matter of public interest [this relates to subject matter]

 S 4(1)(b) the defendant reasonably believed that publishing the

statement complained of was in the public interest (a
subjective/objective test)
[all relevant circumstances are relevant here- s4(2) and s 4(4)]

 No requirement to prove the truth of the defamatory statement. This

defence focuses on whether the materials has a public interest value
and reasonableness of belief/conduct on the part of the defendant in
researching and presenting their material.
CONDITIONS FOR
DEFENCE
The statement must be on a matter of public interest

The defendant must believe that publishing the statement was in the
public interest

The belief that the statement was in the public interest must be
reasonable
WHAT IS PUBLIC
INTEREST?
Quoting from Gatley on Libel and Slander
‘The business of government and political conduct; the promotion of
animal welfare, the protection of health and safety, the dealings of an
MP with a foreign regime hostile to this country, the fair and proper
administration of justice, the conduct of religious groups; discipline
in schools; the conduct of the police; cheating, corruption and the
pressure on elite athletes from an early age in sport; breach of
charitable fiduciary rules; involvement in serious crimes, corporate
malpractice; and the correction of prior misrepresentations by
others.’
Serafin v Malkiewicz [2017] EWHC 2992 (QB)
WORKSHOP 3
You will recap on workshop 2 and consider the defence of Truth,
Honest Opinion and Publication on a Matter of Public Interest.