Joint Select Committee Report on Draft Defamation Bill
The committee wants the Government to make clear through the passage of the Bill what part of the Bill is simply to codify the law and what contains reform. The report states that there should not be any ambiguity for the Court.
Trial by jury.
The Committee considers that most jury trials will now be heard by a single Judge. This reduces the costs of proceedings and promotes early resolution. However, there will still be circumstances when it is appropriate to have a trial by jury. These will be limited to cases involving people in senior positions in public life and ordinarily when their public credibility is at stake,
Improving protection of freedom of speech
The Committee wants to replace the draft Bills test of “substantial harm” to reputation with a stricter test, of having “serious and substantial harm”. The threshold test the committee recommends should be part of the proposed early resolution procedure and a claim failing to meet that test should be struck out.
Responsible journalism and the Public Interest.
The Committee supports the Defence of Justification, honest opinion and responsible publication on the matter of public interest and placing them on a statutory footing.
The Committee recommended changing the name of the “Truth” Defence to the “substantial truth”. The Committee also recommended that a judge be given the power to order publication of a prominent readable summary of its judgment.
The Committee recommended explaining 1. statutory qualified privilege 2 Peer reviewed articles and scientific or academic journals.
The Committee decided that libel tourism had been exaggerated, but the Committee did comment that judges needed to take a more robust approach to ensure that foreign disputes were not brought in Courts in England and Wales, when the real damage had been caused elsewhere. The Committee recommended that the government provide guidance and the Court should have regard to damage caused elsewhere in comparison to the damage cased here.
Single Publication Rule.
The Committee accepts the draft Bill’s proposal to stop it or limit a defamation to one year following the initial publication. There will still be a discretion and the Court are allowed to extend this period when it is just to do so. The Committee also called for a extension of that clause to protect not just the original publisher but anyone who indeed publishes the same material.
Early Resolution Costs Control
The Committee supports the Governments’ intention to promote early resolution. The Committee wants to see a strict enforcement of the pre action protocol in defamation proceedings, the presumption that mediation or mutual evaluation will be the norm, voluntary arbitration and if the claim has not been settled, the Court will determine key issues.
The Committee also recommends that efforts should be made to ensure that the costs of proceedings are reduced, that the proceedings are quicker and that he Court intervenes much more substantially in the costs of proceedings.
The Committee thought however that Government should follow the Jackson Report recommendation as to costs in defamation actions to ensure that those without substantial economic means can still take proceedings.
The Committee recommended that a need notice and take down procedure and measures which would encourage a change in culture in the way user generated anonymous material is dealt with. The Committee considers that the Government needs to take action to reduce the pressure on host and service providers to take down material whenever it is challenged. It recommends that site owners be encouraged to moderate content written by is users. The Committee set out specific proposals as to identifiable internet publications on the one hand and unidentifiable publications on the other. The Committee recommends that if an anonymous posting is made that unless the person making the posting is able to reveal themselves then it would be taken down.
The Committee doesn’t consider that they should lose their right to claim altogether, however they would need to obtain permission of the Court before bringing a liable claim. Such a claim is limited to situations when the corporation is able to show likelihood of “substantial financial loss”.
Much of the Report is already reflects changes in the common law. In terms as to the reform as to costs those are already underway with cost capping and case management. The does report goes further on its reform in relation to the internet.