By John Ringrose, Solicitor, Defamation and Privacy Unit
The Defamation Act 2009 (“the Act”) came into force on 1st January 2010 and replaces the Defamation Act 1961 and some of the common law applicable prior to the 1st January 2010. The act was long awaited, having been the subject of a Law Reform Commission Report in 1991 and of the Legal Advisory Group in 2003. The Defamation Bill was first published in 2006. The Act endeavours to maintain a delicate balancing act by, on the one hand, seeking to vindicate the right of the individual to his or her reputation while, on the other, attempting to respect the absolute right of the press in a free society to publish freely about matters. It is in every individual, organisation, public body and companies’ interests to become broadly familiar with the contents of the Act for risk management purposes.
Redefinition of Defamation
The Act abolishes the separate torts of libel and slander, and replaces them with the unified “tort of defamation”, which consists of “the publication, by any means, of a defamatory statement concerning a person to one or more than one person”. A “defamatory statement” is defined as one “that tends to injure a person’s reputation in the eyes of reasonable members of society”. Previously financial loss had to be proven for certain types of defamation in order to take a case. Now all defamatory statements are actionable.
New Approach to Pursuing Defamation Complaints
A complaint may be brought to the Press Council about the behaviour of a media organisation, including a failure to uphold a person’s right to his or her good name. This aims to ensure that there is a quick, effective and free service for those who feel their good name has been impugned to seek a determination and publication of the determination. No compensation can be awarded. Once a complaint has been dealt with a case can still be taken to the courts. Indeed the complaints process may assist in identifying each party’s case.
Plaintiffs will now only have one year from the date of publication (or in respect of statements published via the internet from when the statement is ‘first capable of being viewed or listened to through that medium’) to take an action (previously it was six in libel and three in slander) although in exceptional cases the court can extend the time to two years.
If the offended person opts to sue for defamation, he or she would have to swear an affidavit verifying assertions of fact. The defendant would also have to swear an affidavit verifying any assertions or allegations of facts upon which he relies. If it is proven that any information in those affidavits is false or misleading the verifying party commits an offence and is liable to imprisonment, a fine, or both. The affidavit must contain a statement that they are aware an offence can be commissioned in this way. This provision, which effectively replicates a type of contempt of court, has been introduced to highlight the seriousness of giving false evidence in a defamation case to the parties.
A judge can now direct a jury on the question of damages. Previously quantification of damages was determined by an undirected High Court jury. This will result in a more predictable and fair award of damages. As a result more cases may be settled because solicitors will be able to advise on the quantum of damages with more certainty.
An appeal in respect of the damages awarded does not need to result in a retrial. The Supreme Court may simply substitute an amount of damages it considers appropriate. This provision has been placed on a statutory footing as previously the Supreme Court was reluctant to substitute damages in defamation cases and retrials resulted.
The defences have now been codified in the act, with the previous common law defences being abolished. There is still the defence of truth, previously called justification, and accordingly all defamatory statements are still presumed false unless proven to the contrary. Absolute and qualified privilege defences remain with some expansion in their application. Honest opinion, fair and reasonable publication on a matter of public interest, innocent publication and consent to publication are similar to defences in force previously but are clearer and placed on a statutory footing.
Other defences are apology and offer to make amends. They are not true defences. Apologies can now be made with no admission of liability being implied. This will assist to settle cases earlier on as apologies will no doubt be made more frequently now than in the past. An offer to make amends cannot be made with any other defence. The benefit of this defence is that it can significantly reduce damages payable and bring the litigation to a close before significant costs are incurred. The Act makes this more straightforward than previously. Media organisations are likely to utilise this when defamatory statements have been made and they wish to reduce the quantum of damages and costs.
New remedies for parties in defamation cases have been introduced and previously existing remedies have been changed. A plaintiff can apply for a declaratory order stating that the defamatory statement is false in circumstances where the party is not concerned about pursuing damages. Defendants can now make lodgements into court without admission of liability. This serves to bring defamation into line with other civil actions. The effect of this change in law is that if a complainant is awarded a lesser sum in the action, he or she could be liable for costs. Correction orders can be applied for which detail the exact contents and method of publication of a correction in respect of a false defamatory statement. Four types of damages can now be awarded. General damages in respect of damage to reputation, special damages in respect of financial losses resulting from that damage to reputation, aggravated damages where the defendant conducted the defence of the defamation action in such a way as to aggravate the damage to the plaintiff’s reputation, and punitive damages when the defendant made the defamatory statement maliciously or recklessly. Orders prohibiting the publication (or further publication) of a defamatory statement and summary disposal of actions can also now be applied for.
The case for modernising our defamation legislation was compelling: contrast the role of the media in 1961 when the original legislation was enacted to their expansive, even invasive remit today coupled with the international influence that pervades throughout our culture. After the long awaited arrival of the newly enacted legislation now only time will tell whether the Act will be hailed a success or failure.
For more information on defamation contact our Defamation and Privacy Unit.
Redefinition of defamation.
Decrease in the time to take an action to one year.
New defences and codification of defences existing prior to the new Act.
New remedies and codification of remedies existing prior to the new Act.
Complaints may be made to the Press Council.