U.K. Defamation Act
From Ad IDEM / CMLA
Revisions to the Draft Defamation Act May 2012
After recommendations from the Joint Committee on the Draft Defamation Bill (the Mahwhinney Committee), the revised draft of the Act now contains a defence in s. 5 for website operators with respect to user generated content.
The following questions were published by the U.K.'s Joint Committee on April 8 2011. Joint Committee on the Draft Defamation Bill
Clause 1: definition of defamation; a "substantial harm" test
- Should there be a statutory definition of "defamation"? If so, what should it be?
- What are your views on the clarity and potential impact of the "substantial harm" test, including its relationship to other elements of the current law such as the presumption of damage in libel claims?
Clause 2: Responsible publication in the public interest
- Will the responsible publication defence overcome the concerns associated with the existing Reynolds defence? If not, what changes should be made?
- Should the meaning of "public interest" be defined or clarified in any way, particularly in view of the broader meaning of this term in relation to the existing fair/honest opinion defence?
Clause 3: Truth
- What are your views on the proposed changes to the defence of justification? In particular, would it be appropriate to reverse the burden of proof in relation to individuals or companies?
Clause 4: Honest opinion
- What are your views on the proposed changes to the existing defence of honest comment? Should the scope of the defence be broadened? Is its relationship to the responsible publication defence both clear and appropriate?
Clause 5: Privilege
- Are the proposals to extend the defences of absolute and qualified privilege appropriate and sufficient?
- Is there a case for reforming the Parliamentary Papers Act 1840 and other aspects of Parliamentary privilege within the draft Bill (in the light of recent coverage of super-injunctions); or should this be addressed by the (forthcoming) draft Parliamentary Privilege Bill?
Clause 6: Single publication rule
- Do you agree with replacing the multiple publication rule with a single publication rule, including the "materially different" test? Will the proposals adequately protect persons who are (allegedly) defamed by material that remains accessible to the public after the one-year limitation period has expired?
Clause 7: Jurisdiction - "Libel tourism"
- Is "Libel tourism" a problem that needs to be addressed by the draft Bill? If so, does the draft Bill provide an effective solution? Is there a preferable approach?
Clause 8: Jury trial
- Do you agree that the existing presumption in favour of trial by jury should be removed? Should there be statutory (or other) factors to determine when a jury trial is appropriate?
- Does the current law provide adequate protection for internet service providers (ISPs), online forums, blogs and other forms of electronic media?