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The Defamation Act 2013 - a speed read

Defamation Act 2013 – A speed read

The Defamation Act 2013 (‘the Act) came in to force on 1st January 2014. It codified and strengthened the previous defamation laws in a way that some criticised as too favourable to potential defendants but others praised as a vital step in the protection of freedom of expression and general liberal values.

New laws often create flux and uncertainty and even after two years you may be asking: how does this affect me? This refresher article aims to inform you about the main parts of the Act and their real world implications.

What is a defamatory statement?

The Act provides no statutory definition for a defamatory statement but it does stipulate that a statement cannot be defamatory in law ‘unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.’

Serious Harm

One of the main aims of the Act was to stop, so called, ‘trivial’ libel claims with little legal merit which wasted money, the court’s time and potentially hindered the right to freedom of expression. In pursuit of achieving the above goal, the heart of the Act requires a claimant to show that they have suffered ‘serious harm’ to their reputation before a claim can be brought.

The test for serious harm is one that is judged on the balance of probabilities. Therefore, a claimant has a positive responsibility to prove, on balance, that a statement has or will probably cause serious harm to their reputation.

This test can often be a high threshold to clear, and figures showing that defamation cases fell by 27% in 2015 may indicate that the high threshold is having the desired effect of keeping trivial claims out of court.

Serious Harm in Bodies that Trade for Profit

A body which trades for profit (ie a business) will not be able to claim that a statement has caused ‘serious harm’ until it can prove on the balance of probabilities that the statement has caused or is likely to cause ‘serious financial loss’ to the body.

Serious financial loss is obviously a term that is relative to the size and scope of the body in question and the industry that it trades within. This is why a Court will decide whether serious financial loss is likely or has been caused on an individual, case by case basis.

Defences

Truth

If the statement of the Defendant is substantially true they will have a full legal defence.

Honest Opinion

The expression of an honestly held opinion is protected by the law but it should always be remembered that when it is not obvious whether a statement is an assertion of fact or an opinion, the court will have to decide what type of statement it is on an objective basis.

Matter of Public Interest

This replaced the common law Reynolds privilege which protected responsible journalism. The statement must relate to something which is a matter of public interest and the Defendant must reasonably believe that the publication of the statement is in the public interest.

Apology?

In the case of Cook v Mirror Group Newspapers Ltd, which concerned a Sunday Mirror Article entitled Millionaire Tory cashes in on TV Benefits Street, the Court gave great weight to an apology printed in the next edition of the Sunday Mirror which issued an apology. This was judged to have significantly mitigated any serious harm that had or was likely to be caused by the original article.

How can we help?

Our expert team of defamation and media lawyers, headed by James Saunders and Matthew Purcell, can offer you reliable and robust representation.

Previous clients have included individuals, international media and news organisations and business; we have the expertise to offer you a timely and sensitive resolution.
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