In the words of Lord Justice Lawton, intrinsic to the role of the media is bringing to light “the fraudulent and the scandalous” (Dodd and Hanna 2012). The media has a historic role of exposing deceit, and has a duty to the public to hold the guilty to account. However, the law must strike a balance between the freedom of the media, with protecting “an individual’s personal and professional reputation from unjustified attack” (Dodd and Hanna 2012). The Defamation Act 2013 has arguably favoured defendants, and is still widely perceived as a force for good in increasing the scope of the media’s freedom of expression. In seeking to understand whether further reform is needed, it is integral to consider some of the major changes initiated by the Defamation Act, and the success of its mediation between Articles 8 and 10 of the European Convention on Human Rights. Arguably the most significant aspect of the Defamation Act cushioning the media, is the serious harm threshold which works as a deterrent to trivial claims.
The test, in section 1(1), details, “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”. Over the years several cases have tested the meaning of this, with Cooke v MGN Ltd (2014) demonstrating the pressures on claimants to meet the serious harm threshold. Bean J isolated the importance of an online apology made by the defendants which worked to abate the poor impression of the claimant.
This case favourably demonstrates to publishers that the serious harm test is flexible and an “accessible apology” may counter a defamatory statement. The media is further safeguarded by the widely held perception of the serious harm test as a significant hurdle that must be overcome before a claim can gather traction. In Ames v The Spamhaus Project Ltd (2015) Warby J held that serious harm is better dealt with by way of preliminary issue; this ruling paved the way for defence lawyers to similarly advise clients to raise serious harm at the outset in a case. For media organisations this means that the claimant’s mettle can be tested, and costs can be minimised by disposing of a claim at the early stages before publishers incur substantial costs drafting a defence. However, the serious harm threshold has been substantially tested in recent years, with many arguing the bar has been lowered in favour of the privacy rights of claimants. Lachaux v Independent Print Ltd (2017) is a landmark case in which Warby J judged, “Libel is no longer actionable without proof of damage…
It is now necessary to prove as a fact on the balance of probabilities that serious reputational harm has been caused by, or is likely to result in future from, the publication complained of.”Most significantly, Warby J ruled that an inference of serious reputational harm was sufficient, a judgment held by the Court of Appeal. Many media organisations perceive this ruling as at odds with parliament’s original intentions for the serious harm threshold; namely to diminish trivial claims, and buttress media’s freedom of expression. However by eschewing the stipulation of “actual harm”, the consideration of inference will significantly shorten the staying period from the date of publication up to the trial. During this period in which harm is ordinarily assessed, the level of damage suffered by the claimant may be influenced by a variety of factors fundamentally outside the control of both parties i.e.
the publication of analogous allegations, and virulent social media discussion of the case. Such eventualities have the potential to be more damaging to the defendant, so in this respect inference of harm may work to curtail further reputational harm to the claimant, and mounting legal costs for both parties. The defence of honest opinion benefits journalists in the sense that it enshrines the right to hold an opinion. The section 3 defence can insulate an honestly held opinion even in the eventuality that the reporter has based it on something which is false, providing there was other true factual support for the honest opinion. Spiller v Joseph (2010) forms the basis of this condition, as detailed by Lord Nicholls; “the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based”.
Arguably this line of defence strongly favours members of the media who fact check, keep records, and value journalistic integrity and honesty. Whilst there is ambivalence over whether the reporter must be aware of the fact on which they rely for their defence, this doubt may act as a deterrent to potential claimants, further strengthening the position of publishers. When considering Article 10 of ECHR, this defence generally supports free speech over the rights of individuals. Section 3’s greatest power is that the defendant must no longer show this opinion was in the public interest, a factor which significantly broadens the scope of defence. As long as it can be proved an “honest person” would reach the same conclusion given the facts, a journalist is safeguarded if they follow the correct checks and balances intrinsic to the profession.
In line with the Defamation Act’s advocation of good journalistic practice, section 4’s public interest defence has to an extent raised the bar slightly higher for journalists. In order to ensure the responsible publication on a matter of public interest, media organisations will undergo greater scrutiny for their decision to publish the statement complained of. Section 4 shields individual sources and contributors from the weight of the law, in Economou v De Freitas (2016), Warby J held that contributors are, “entitled to rely on the journalist to carry out at least some of the necessary investigation”. Publishers now have to prove beyond “reasonable belief” that the material is in the public interest, it is believed that courts will still seek to reflect Lord Nicholl’s ten point defence of qualified privilege which paired duties and responsibilities.
Section 4 is arguably a fair balance between Articles 8 and 10 of ECHR, indeed the judge in the recent case of Axel Springer v Germany (2012) mediated;”the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism.”In this respect, whilst there will be more rigorous inspection of the process taken by the defendant to verify the statement, journalists who follow stringent pre publication checks will be protected. Law reform on online media has greatly strengthened the position of social media platforms and online publishers.
The single publication rule and limitation period, constitute perhaps the greatest insurances against a barrage of defamation claims. Section 8 stipulates that action will only amass from the point of first publication, provided all subsequent publications are “substantially the same” form and not “materially different”. Whilst it is conceivable that potentially defamatory user generated content on an old profile could be retweeted and cause reputational harm in the present, the current law is diminishing the number of claims brought against publishers. Most integral to publishers with online archives; the need to undertake costly and timely monitoring of archive content is now redundant. The defence of innocent dissemination under section 5 and 10 is widely perceived as evidence of the increased protection afforded to website operators under defamation law. However to what extent does this compromise freedom of expression? The Defamation Act has begun to recognise online operators of forums and blogs in a more intermediary capacity.
Under section 10 of the 2013 Act, a website operator can claim innocent dissemination if they can prove that they were “not the author, editor or publisher of the statement complained of” and had no reason to believe the content was defamatory. It should be considered by the government that even if the poster can be identified, when considering legal proceedings, under section 10 it may not be “reasonably practical” for the claimant to sue if there were certain geographical challenges. Equally individual internet posters are unlikely to have the financial clout of a publisher.
It is very hard to balance the very valid concerns of both website operators and the victims of online defamation. The most significant aspect of online defamation is that it is often entirely anonymous. Under section 5, if a website operator is unable to identify a poster then the material has to be removed. With the majority of website comment sections not requiring user identification, and the obvious time pressures implicit in moderating complaints and serving section 5 notices, it is clear that more material is likely to be removed from the internet than is legally necessary. Arguably further reform is needed to internet defamation, as current legislation risks unnecessary censorship and tarnishing free expression and debate with the same broad stroked defamation brush.
In conclusion, whilst still in its infancy and with little precedent case law, it is integral to note that defamation law widely favours defendants that practice responsible journalism. Trial by jury, the serious harm test, and defence of honest opinion are all facets of defamation that shorten the length of a trial, and diminish legal costs for the defendant. The law advocates journalism that mediates the fine line between public interest and freedom of expression; thus media organisations that demonstrate adherence to professional processes, and duty to the public are generally covered. Arguably a marked shortfall is visible in internet defamation, which needs more reform. Whilst McAlpine v Bercow (2013) illustrates a shift of responsibility towards the user, the burdensome section 5 notice is censoring more material than is necessary. It is here that the balance between Article 8 and 10 ECHR is in flux, the law has yet to find an appropriate means of allowing internet users the, “freedom to hold opinions and to receive and impart information and ideas”, without substantial and clumsy “interference by public authority”.