Critically analyse the reforms brought about by the Defamation Act 2013.

Defamation is a tort which protects the claimants reputation. defamation will only
occur when a third party knows of the allegation. It means that the allegation must
be published .Several defamation acts have been introduced and reformed. The
latest act is the Defamation Act 2013 which came into force on 1 January 2014. This
essay will focus on the reforms brought about by the 2013 Act.
Defamation may occur in a number of ways. The attacks may be spoken, written,
indicated by gestures or conduct or even expressed in sign language or in code.
Defamation consists of two main categories; Libel and Slander. Libel generally takes
a permanent form while Slander is temporary. The 2013 Act has aimed at shifting
the balance between protection of reputatoin and free speech,in favour of free
speech.. . Section 1(1) of the Act provides that unless publication of a statement has
caused or is likely to cause serious harm to the reputation of the claimant, it is not
defamatory.

In Thornton -v- Telegraph Media Group Ltd; QBD 16-Jun-2010,

Tugendhat

redefined the law of defamation when he introduced a threshold requirements of

seriousness. In Thornton, The claimant said that a review of her book was
defamatory and a malicious falsehood. It was held that although the review was
defamatory, it was no serious enough to constitute defamation. The adoption of the
threshold requirement ,and its enactment in statutory form,

seems a proper

development of the law that strikes an appropriate balance between the convention
rights to freedom of expression(Article 10) and respect for private life (Article 8).
The Strasbourg Courts own Article 8 jurisprudence emphasizes that harm to
reputation must reach a sufficient level of seriousness before it can justify a
limitation on freedom of expression. However, it may be hard to for The claimant
to prove that there has been serious defamatory damage if he already has a bad
reputation anyway

Until 2013, there were four exceptions to the rule that slander requires actual injury
to be proved, and hence four types of case in which slander could be said to be
actionable per se. But the Defamation Act 2013 abolishes two previous categories,

meaning just two survives. Imputation of Certain Contagious diseases and

Imputation of Unchastity have been abolished.
Prior to the Defamation Act 2013, words imputing a contagious or infectious disease
likely to prevent people from associating with the claimant were actionable without
proof of damage. However, s.14(2) of that Act provides that imputation of a
contagious or infectious disease does not give rise to a cause of action for slander
unless special damage is shown. Also, under the common law, either a man or a
woman taking an action in slander for the imputation of unchastity was required to
prove damage. The enactment of the Slander of Women Act 1891 provided that
words imputing unchastity or adultery in any woman or girl (but not in a man) were
actionable per se. This potentially discriminatory provision was also addressed by
the 2013 Act, s.14(1) of which repeals the Slander of Women Act 1891.
one of the key provisions in the Defamation Act 2013 is removal of the presumption
in favour of trial by jury; s.11 provides that trials for both libel and slander are now
to be without a jury unless the court orders otherwise. As for the ability, the Law
Reform Act 1934 states that a claim for defamation does not survive death.
According to me, the 2013 Act should have made provision for a claim to survive
even after the death of the claimant. The claimants estate may continue the legal
proceedings on behalf of the claimant. Furthermore, there is an obvious loophole in
the law. If a person is sick and will live for only a few months, this may encourage
some people to allege defamatory statements against that person without fearing
any liability as the claimant will probably not live long enough to carry out legal
proceedings.
The ability to sue for reputational damage to companies has been significantly
reduced by the 2013 Act. Defendants are more likely to be braver about criticising
companies. This in turn is likely to lead to more actions by individuals associated
with the company, e.g. the CEO. Some companies are more associated with
individuals than others. For example, the late Steve Jobs was closely associated with
Apple. However, companies may still choose to take action by focusing on
inaccuracies of the statement rather than claiming defamation.
Before the introduction of a single publication rule under s.8 of the Defamation Act
2013, repeating a defamatory statement was regarded as a further publication,
leading to liability. The Act abolishes the common law principle that every fresh
publication gave rise to a new cause of action. . it does not apply where the manner
of the subsequent publication is materially different from the manner of the first
publication. . However, in certain circumstances the original defamer will remain
liable if the republication is, on the facts, the natural and probable result of the
original publication. This was held in the case of Slipper v BBC [1991]
Liability of internet service providers (ISPs), websites and search engines is now
governed by s.5 Defamation Act 2013. A person defamed on the internet may seek
to have the defamatory statement removed from the public domain as quickly as

possible and immediately approach those responsible for providing the conduit for
publication and dissemination, such as the ISP.
An ISP is not considered to be the publisher in these circumstances but is treated
as a secondary publisher (distributor) and may be able to rely on the defence of
innocent dissemination under s.1(b) Defamation Act 1996. Search-engine liability
was considered in Metropolitan International Schools Ltd v Designtechnica
Corporation [2011]. Eady J found that Google was not liable for publication of the
statements because it had no control over the search terms entered by users of the
search engine or of the material which is placed on the web by its users.
Several reforms have been carried in regards to defences under the 2013 Act. The
defence of Truth replaces the common law defence of justification. It is irrelevant
that the defendants intention was malicious. The only exception to this may be
found in s.8(5) of the Rehabilitation of Offenders Act 1974. In Alexander v North
Eastern Railway Co (1865),it was held that the defendant must show that the
defamatory statements are substantially true. Section 1(1) of the 2013 Act confirms
this approach: if the defendant can establish the essential or substantial truth of
the sting of the libel there is no need to prove that every word of the statement was
true.
A new defence of honest opinion which replaces the common law defence of fair
comment has been introduced by the Defamation Act 2013, s.3. Unlike the defence
of truth, the defendant is not required to show the truth of the statement. The
statement must be recognisable as comment (as distinct from an imputation of fact)
and the assessment is made on the basis of how the ordinary person would
understand it. This reflects the test approved by the Supreme Court in Spiller v
Joseph [2010]. The requirement for the opinion to be on a matter of public interest
is not contained in the 2013 Act, which gives protection to all opinion.
Section 4 of the Defamation Act creates a new defence for publication on a matter
of public interest. This new defence is intended to reflect the principles established
in Reynolds v Times Newspapers. The defence provided by s.4 may be relied on
irrespective of whether the statement complained of is one of fact or opinion. In the
new defence, there is no express requirement for the publisher to prove that it: a)
has met a standard of responsible journalism; b) satisfied any or all of the Reynolds
factors; or c) acted both fairly and responsibly in gathering and publishing
information.The Section 4 defence will apply where the defendant can show:

the statement complained of was, or formed part of, a statement on a matter

of public interest; and
the defendant reasonably believed that publishing the statement was in the
public interest.

Section 5 of the Defamation Act 2013 provides a new defence aimed at protecting
forums and blog sites who print, distribute and host user-generated content from
libel claims arising from defamatory user comments. Section 5 does not replace the
existing law; it is a new defence which is defeated where the operator acted with
malice in posting the statement.Under section 10, if it is reasonably practicable for
a claimant to sue the person who posted a comment on social media, then action
cannot be taken against the social media platform or the ISP. This is a relief to social
media networks as they are very much exempt from liability.