The UK has been earning itself a bad reputation when it comes to freedom of speech. There has been a recent spate of highly publicised restrictions on publicity, primarily in the form of super-injunctions designed to keep celebrity indiscretions discreet. The UK's strict defamation laws have made the English courts the top destination for "libel tourism" – so much so that the United States has passed the SPEECH Act to protect its nationals from libel decisions of foreign courts, the English courts in particular. One editor went as far as describing the UK libel system as a "bloated and Kafkaesque means of transferring millions from cash-strapped editorial budgets to high-profile legal firms".
As a means of tackling this issue the Ministry of Justice has published a draft Defamation Bill for England and Wales for consultation. The key provisions proposed in the draft Bill are:
- Comments must cause substantial harm to be considered defamatory;
- A new defence where the comment was made in the public interest;
- A statutory defence of truth, replacing the existing defence of justification;
- A restatement of the fair comment defence, now the "honest opinion" defence;
- Extension of qualified and absolute privilege;
- A new single publication rule to prevent one statement from one publisher giving rise to many separate libel actions;
- Closer control of jurisdiction, to reduce libel tourism; and
- No presumption in favour of jury trials for defamation actions.
The government hopes these changes will bring the English defamation laws up-to-date and re-balance the relationship between the right to privacy and the right to freedom of speech. In particular, these provisions are aimed at preventing misuse of defamation claims to stifle free speech and prevent those with little or no connection with the UK from using the English Courts to stifle criticism.
Paired with the draft Bill is a consultation on further changes to defamation laws that the government is considering. Key points that are being considered are:
- Who is responsible for comments published online – e.g. should internet service providers be given more protection from defamation actions;
- Whether a new court procedure should be introduced to resolve preliminary issues as soon as possible, to reduce time and costs;
- Whether the current summary disposal procedure should be retained or amended;
- Whether the court's power to order publication of its judgment should be more available;
- Whether more measures are required to improve fairness in defamation actions, particularly regarding defamation actions brought by large corporations with significant legal budgets; and
- Whether the Bill should place restrictions on public bodies bringing defamation actions.
The proposals will explore the fine balance between protecting freedom of speech on the one hand and the right to privacy on the other. Journalists and publishers will be pressing hard in favour of free speech whereas individuals and companies which rely on the spectre of a defamation action to protect their privacy and reputation will want to ensure the Bill does not go too far in reducing the current scope of defamation. This is exactly the balance that the Justice Secretary, Ken Clarke, hopes the Bill will achieve: "the bill will ensure defamation law continues to balance the needs of both sides and encourage a just outcome in libel cases".
The consultation paper is available here and the deadline for submitting comments and suggestions to the Ministry of Justice is 10 June 2011.