Defamation Act 2013 – How it affects us

The new Defamation Act 2013 came into force on 1st January 2014. A defamatory statement is one that lowers the claimant in the estimation of right-thinking people, or causes the claimant to be shunned and avoided. The Defamation Act 2013 adds another requirement: a statement is not defamatory unless its publication has caused, or is likely to cause, serious harm to the reputation of the claimant. Harm to the reputation of a body that trades for profit is not serious harm unless it has caused, or is likely to cause, serious financial loss. An individual claimant faced with a requirement to show serious harm to his reputation may struggle; a company which has to prove “serious financial loss” is likely to find this hurdle even more difficult to overcome. In Jameel v Wall Street Journal Europe SPRL [2006] the House of Lords accepted that the good name of a company is, by itself, a thing of value. Thus, damage to a company’s reputation can have consequences far beyond financial loss, including lowering its standing in the eyes of the public. This might make people less willing to deal with it. But, even if a company can show a decline in revenue following the defendant’s defamatory statement, how will claimants be able to prove that their losses were caused by the statement complained of rather than, for example, the existence of competitor promotions or new products or the general economic situation? Unfortunately, the Act does not state how “serious” the alleged loss must be in order for it to qualify as “serious financial loss”. This may well take some time for the courts to decide.

The common law defences of justification, fair comment and responsible publication have been abolished and replaced with statutory defences of “truth”, “honest opinion” and “publication on matters of public interest”. Honest opinion no longer requires the statement to be on a matter of public interest, and the responsible publication defence simply provides that the court “must have regard to all the circumstances of the case” rather than adopting the House of Lords’ ten criteria set out in Reynolds v Times Newspapers [2001].  The Act also creates some entirely new defences.  One of them is qualified privilege relating to peer-reviewed material in scientific or academic journals.  Another new defence protects “operators of websites” who do not “post” the defamatory statement.  The precise differences between the old common law defences and the new defences provided in the 2013 Act will also take some time for the courts to work out.

But the aim of the 2013 Act, without doubt, is to make it harder for a claimant to successfully sue for defamation.