Defamation law is finally fit for the digital age

The law of Defamation has finally in the 21st Century arrived in the online media and social networking space, with potential implications for internet writers, journalists, forum hosts and publishers, writes Nigel Musgrove, a litigation solicitor at Cousins Business Law .

The Defamation Act came into force in England and Wales on January 1^st 2014. It is designed to modernise the law of defamationand strike a fair balance between competing interests whilst maintaining the right of free speech.

Key points for online freelancers and their clients

• A new requirement that to have a remedy in an action for defamation an individual or other body such as a company, club, charity or association must establish that the defamatory statement has or is likely to cause serious harm to their reputation.

• A new requirement that to have a remedy in an action for defamation a body trading for profit must establish not only that the defamatory statement has caused serious harm to their reputation but that it has caused or is likely to cause it serious financial loss.

• A new “ single publication” rule to address the problem with multiple actions for repeated online publication. In future, the first publication will be regarded as the first and only publication, provided that subsequent publications are substantially the same.

• There is a one-year limitation date for defamation actions (unless the court excludes the time limit under its powers in section 32A of the Limitation Act 1980), so the clock will start on the date of first publication.

• The rewriting of the three main defences which are now encoded in statute and called “truth”, “honest opinion”, and “publication on a matter of public interest”.

• A defence regarding a peer-viewed statement in a scientific or academic journal.

• A new defence for website operators who can show that they did not post the defamatory material, but with a new requirement for a complaints procedure which could lead to the host having to remove the posting.

• Trial is to be without a jury unless the court orders otherwise.

What’s the likely effects, in practice?

Individuals will certainly find it harder to pursue claims for defamation. A website containing any offending material and the material itself may only attract a small amount of views. However, note that the defence available to web hosts is dependent on them complying with the new complaints procedure, so it would at least be worth serving on them the new Notice of Complaint and setting in motion the process which could result in the web host having to remove the offending material within seven days. This is worth doing whether or not you can establish serious harm to reputation or serious financial loss.

The three main defences available

Truth: the defendant will have to show that the statement is substantially true.

Honest Opinion: the defendant will have to pass three tests, and establish (1) it was a statement of opinion, (2) the statement indicated the basis of the opinion, and (3) an honest person could have the opinion on the basis of (a) any fact which existed at the time the statement was published, and (b) anything asserted to be a fact in a privileged statement published before the statement complained of.

Public Interest: the defendant will have to show that the statement was a statement on a matter of public interest and that he reasonably believed that publishing the statement was in the public interest.

Final thought…

The existing case law on defamation is likely to be applied to these three defences as it applied to the old common law defences, but we must wait and see how the courts interpret the new laws.