Tuesday, May 24, 2011

The Defamation Act: Not fit for purpose

Ken Clarke has drafted a Defamation Act (latest draft March 2011) that seeks to address issues regarding Libel. Following the Privacy issues raised from the Ryan Giggs outing, it is clear this draft needs serious redrafting. In fact it would be better to abandon this all together, focus on rescinding the the EU generated Human Rights Act 1998 and defining a proper constitution like the one in the USA.

Exec Summary:

The Coalition Agreement indicates that measures to reverse the erosion of civil liberties and roll back state intrusion will include “The review of libel lawsto protect freedom of speech”. A range of concerns have been raised about the detrimental effects that the current law on libel is having on freedom of expression, particularly in relation to academic and scientific debate, the work
of non-governmental organisations and investigative journalism, and the extent to which this jurisdiction has become a magnet for libel claimants.

Three main reports have been published over the past 18 months in the context of debate on these issues: a report by English PEN and Index on Censorship, “Free Speech is Not for Sale”, was published in November 2009; a Libel Working Group set up by the Ministry of Justice which included media and claimant lawyers, academics, representatives from those campaigning for libel reform, and the scientific community published its report on 23 March 2010; and the Culture Media and Sport Select Committee published the report of its enquiry on press standards, privacy and libel on 24 February 2010.

Subsequently Lord Lester introduced a Private Member’s Bill in the new Parliament, and this received Second Reading on 9 July 2010.

The Government has taken the recommendations in all these reports and the contents of Lord Lester’s Bill into account in formulating the provisions in the draft Bill and this consultation paper. We have also carried out informal consultation with a range of interested parties including non-governmental organisations; the media and publishing industry; the legal profession; internet-based organisations; and representatives of the scientific community.

This consultation paper is divided into two main parts: consultation on proposals which have been included in the draft Bill at Annex A, and consultation on other issues which have not at this stage been included in the draft Bill.

Issues included in the draft Bill are as follows:

A new requirement that a statement must have caused substantial harm in order for it to be defamatory

A new statutory defence of responsible publication on matters of public interest

A statutory defence of truth (replacing the current common law defence of justification)

A statutory defence of honest opinion (replacing the current common law defence of fair/honest comment)



  1. 'the EU generated Human Rights Act 1998': you're clearly not a political or legal correspondent then. The HRA has nothing to do with the EU. It simply incorporates into UK law the European Convention on Human Rights which was produced in 1950 (a full 7 years before the EEC's existence) and which was largely written by British lawyers and civil servants. It applies to the Council of Europe, a totally different body to the EU. Britain has always been subject to the ECHR; the only difference is that cases can now be heard in UK courts.

    It's also worth knowing that the Act was only intended to cover public authorities (government, police, etc). The reason why judges can hear 'horizontal' (fnar!) cases between private citizens/corporations is a result of the application by the Times to allow this in the Act's very first case i.e. newspapers themselves argued that judges should be allowed to use the Act to rule on disputes between the press and private individuals.

  2. Minor niggle: Clarke has presented the bill. It's unlikely he would have drafted it - that would be a civil servant, or perhaps a SPAD.