The Bill introduces a “serious harm” test which not only places a heavy burden on the Claimant, but also has the potential to lead to interpretational difficulties as to how “serious harm” is defined. This is yet another obstacle, not just for the Russian Oligarch or the American “libel tourist”, but also for the man on the street. Not only is he facing what is nothing short of intimidation in the press in the discouragement of defamation claims, but the Bill is also proposing the virtual abolition of trial by jury, this being the last opportunity the public have for expressing their disapproval of the excesses of the tabloid media.
However, the re-naming of the justification defence as “Truth”, together with the clarification of the “fair comment” defence which will instead be known as “Honest Opinion” is probably a step in the right direction.
Other changes being proposed include the introduction of the single publication rule, providing that a subsequent publication of substantially the same allegations is no longer actionable. In the era of the internet, this effectively means that offending material stored in online archives can remain unchallenged in perpetuity.
The Government has also given in to aggressive lobbying on the part of the press to discourage “Libel Tourism”, notwithstanding the fact that statistical research by Sweet & Maxwell established that the number of such claims are minimal.
New Defamation Bill leaves public vulnerable
All in all, the new Bill leaves the general public even more vulnerable to the whims of the tabloids and internet publishers, while there still remains no balance in terms of increased privacy protection and access to justice.
Hot on the heels of the Leveson Inquiry, Privacy and Libel Law: The Clash with Press Freedom vigorously reviews the controversial development of privacy law amid calls for reform of the law of defamation...