Defamation Act 2013

The growth in social media and the internet generally has brought the law of defamation back into the public eye. Defamatory comments can be made, in the heat of the moment, which then take on a life of their own, both in the extent to which the original comment 'spreads', but also in the repeating of the rumour or statement by others. There have been a number of recent high profile cases, particularly on Twitter, highlighting the danger of making prejudicial comments, or innuendo and rumour which are then "re-tweeted" and spread.

The law of defamation involves a delicate balancing exercise between the need to protect reputations from untrue allegations and the right to uphold the right of free speech, and the growth of the internet and social media has resulted in another effort to legislate in these difficult areas. The Defamation Act 2013 will come into force on 1 January 2014 and will involve a number of legislative changes. The key changes are set out below:

1. In order to bring a claim, an individual Claimant will need to show that a statement is likely to cause 'serious harm' to his or her reputation and a business will need to show 'serious financial loss'. It remains to be seen how this will operate in practice.

2. There are new statutory defences to a claim for defamation including the defence that a statement made is substantially true (replacing the old defence of justification), the defence of honest opinion (replacing the old defence of fair comment) and a new defence of publication in a matter of public interest.

3. Websites will be given greater protection against claims relating to user generated content although such protection will be subject to a number of caveats including compliance with complaints procedures.

4. There is a clarification of the circumstances when the defences of absolute and qualified privilege will be available.

5. There is an attempt to restrict the circumstances in which 'libel tourism' will occur. Libel tourism occurs where claims brought within the English Courts only have a tenuous link to this country. Claims are brought in these circumstances because of the perception that the libel rules here are more favourable to Claimants than elsewhere.

6. The presumption that defamation cases will be heard before a jury is removed.

The overall flavour of the changes is, perhaps, to redress the balance in favour of free speech whilst not inhibiting Claimants from taking steps to challenge serious threats to their reputation. It most certainly does not give carte blanche to the making of scurrilous, defamatory or even reckless comments and the best advice must still be to think very carefully indeed before making any comment which will affect someone's reputation, even by implication, and to be aware that in the world of the internet and social media, there is no such thing as a private comment.

Rollits' Dispute Resolution Team have recent experience of defamation claims arising from publication on the internet. Please speak to Ralph Gilbert on 01482 337352 in the first instance.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.