Tilting at Windmills: the Defamation Act 2013
| Author | Alastair Mullis,Andrew Scott |
| Published date | 01 January 2014 |
| Date | 01 January 2014 |
| DOI | http://doi.org/10.1111/1468-2230.12057 |
LEGISLATION
Tilting at Windmills: the Defamation Act 2013
Alastair Mullis and Andrew Scott*
In April 2013, the Defamation Act was passed, the culmination of a four-year political campaign.
The legislation is intended to ameliorate the ‘chilling effect’ of libel law on scientists, online
commentators, NGOs, and others. This paper considers the main changes wrought: reform of the
main common law defences, changes relevant to scientific discourse and online speech, and revisions
that will impact on process. It identifies areas where there will be problems of interpretation for
courts, and suggests that the Act will fail to provide clarity for publishers keen to assess the legality
of their actions. The paper also contends that more attention should have been paid to remedies (in
particular, the desirability of discursive remedies such as the right of reply). The question is posed
whether the Act addresses the core problem with libel law: the juridification and over-complication
of public sphere disputes, and the attendant cost of embroilment in legal proceedings.
In April 2013, the Defamation Act (the Act) received the Royal Assent as the
culmination of a four-year political campaign and a multi-stage pre-legislative
process. The legislation is intended to ameliorate the ‘chilling effect’ of libel law;
to address the dysfunctionality that ‘imposes unnecessary and disproportionate
restrictions on free speech’, and that ‘does not reflect the interests of a modern
democratic society’.1Specifically, it is intended to allow scientists, online com-
mentators, non-governmental organisations, and others to introduce facts, criti-
cism, comment and condemnation into public discussions without undue fear
that their contributions will result in legal repercussions. Some campaigners have
extolled the reforms, suggesting that they ‘will change the landscape of free
speech in Britain’.2Others have been more circumspect,3while the Minister
charged with implementing the law – Lord McNally – has emphasised that it
should be understood as only part of a wider array of measures oriented towards
improving the functioning of the public sphere.4He has indicated that his
‘intention . . . has always been to end up with legislation that works’.5The
overarching aim of this paper is to consider the success of that project.
*School of Law, University of Leeds and Department of Law, London School of Economics and
Political Science respectively.
1 Libel Reform Campaign (2009) Free Speech is Not For Sale at http://www.libelreform.org/our-
report (last visited 4 October 2013).
2 D. Ponsford, ‘Defamation Bill passed’ Press Gazette 25 April 2013, citing Simon Singh.
3 J. Glanville, ‘We’ve got a defamation bill but it’s how we act that matters’ The Guardian 29 April
2013; Libel Reform Campaign, ‘Initial summary assessment of the Defamation Bill’ 24 April 2013
at http://www.libelreform.org/news/548-defamation-bill-agreed-by-parliament (last visited 11
October 2013).
4 P. Reidy, ‘Libel Act to commence before end of year’ Index on Censorship 13 June 2013.
5 HL Deb vol 739 col 933 9 October 2012.
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© 2014 The Authors. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(1) MLR 87–109
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
After offering a brief overview of the contents of the Act, the paper considers
the main changes wrought by the new law. This involves discussion of the
reform of the main common law defences, and the impact of the new legislation
on two types of speech that were of particular concern to campaigners (scientific
discourse and online speech), and the likely ramifications of the Act for the libel
process. The discussion identifies elements of the legislation that will likely pose
problems of interpretation for courts in applying the law. It also highlights
conceptual flaws in some aspects of the Act. It suggests that the new law will
alter, but not very much ameliorate, the costly and burdensome process through
which libel actions proceed, and will fail to provide the clarity that would enable
publishers better to assess the legality of their actions when choosing to publish.
The paper is also critical of the Act on account of what it has not even attempted
to achieve. On one level, this involves the complaint that more attention has not
been paid to the matter of remedies, and in particular to the opportunity opened
by the advent of new technology fully to embrace the discursive remedies of
apology, correction, and right of reply. At a deeper level, the question is posed
whether the lawyers who have been to the fore in the development of the Act have
fully understood the problem; whether they have failed adequately to think
outside the legal box. Speaking during the parliamentary debate, the eminent
scientist Lord May expressed the concern that ‘what is being described . . . [is] not
easily going to be translated into anything that is not almost as expensive as what
is currently being used as a weapon . . . [when most disputes] could have been
settled by a judge in half an hour’.6The core problem with libel law has been the
juridification and over-complication of public sphere disputes, and the attendant
cost of embroilment in legal proceedings. This problem has been barely touched,
to the benefit of no-one bar tyrants and lawyers.
AN OVERVIEW OF THE ACT
The Act comprises seventeen sections, consisting of a mixture of codifying,
revising and general provisions. Section 1 introduces a ‘serious harm’ threshold
to the bringing of a claim. Sections 2 to 7 concern defences; the main common
law defences are abolished and replaced. Section 2 restates the justification
defence under the label of ‘truth’, section 3 recasts the fair comment defence as
‘honest opinion’, and section 4 replaces Reynolds privilege with a new defence of
‘publication on a matter of public interest’. Section 4(3) restates the reportage
variant of the defence. Section 5 provides a new defence for the operators of
websites, and sections 6 and 7 deal with aspects of privilege.
The latter part of the statute concerns publication, jurisdiction, the trial
process and remedies. In a revision of particular importance to online publishers,
section 8 introduces a ‘single publication rule’ that will see the limitation period
for claims run from the date of ‘first publication’. Section 9 is intended to address
the phenomenon of ‘libel tourism’, and compels the court to refuse jurisdiction
unless it is satisfied that England and Wales is ‘clearly the most appropriate place’
6 HL Deb vol 741 col GC429 17 December 2012.
© 2014 The Authors. The Modern Law Review © 2014 The Modern Law Review Limited.
88 (2014) 77(1) MLR 87–109
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