The Defamation Act 2013 came into force on 1 January 2014. Amongst other things, the new law introduces a new “serious harm” threshold for a claim to be brought, gives better protection to website operators and seeks to address “libel tourism”.
To break these key changes down:
- To bring a claim, the person about whom a defamatory statement has been made must show that the statement has caused or is likely to cause serious harm to their reputation. Additionally, a business claimant must show serious financial loss to meet this threshold. This is in the hope of reducing and discouraging the number of claims.
- Where a claim is brought against a website operator in respect of a statement posted on its site, the operator may avoid liability if it did not post the statement itself. However, this defence may be defeated if the claimant shows that it could not identify the person who did post the statement and has made a valid complaint to the operator who failed to respond to it in accordance with any regulations. No such regulations have yet been created, but these may cover the action required to be taken in response to a complaint, such as disclosing the identity of the person or taking down the statement. The regulations are eagerly awaited.This defence will be welcomed by social media websites and anyone with forums, bulletin boards or comment functionality on their site. It goes further than existing legal protections and, importantly, it is specifically stated that the fact that the operator moderates the statements posted by others will not alone defeat the defence.
Additionally, the court has been given power to order a website operator to remove defamatory statements posted by someone else.
- Where a claim is brought against a person not domiciled in the UK, another EU state, Norway, Iceland or Switzerland, the court does not have jurisdiction to hear and determine that claim unless the court is satisfied that, of all the places in which the statement complained of has been published (or any statement containing the same, or substantially the same, imputation), England is clearly the most appropriate place in which to bring an action in respect of the statement.
The Act’s explanatory notes state that where a statement is published in England but also aboard, the court will need to consider the overall global picture to decide where is most appropriate for the claim to be heard. Factors will include the amount of damage to reputation in each jurisdiction, the extent to which the publication was targeted to the readership of each jurisdiction and whether the claimant will not receive a fair hearing abroad. It will be interesting to see which factors are given greater weight by the court. The purpose of this is to stop forum shopping and would-be litigants wanting to use the English courts just because they think their chances are better here.
The Act makes a number of other changes, including refreshing and renaming other available defences. Please contact us for further information.