Advice for companies and individuals on reputation management and brand protection

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Advice for companies and individuals on reputation management and brand protection

14 Jan 2014
  1. The Defamation Act 2013 is in force as from 1 January 2014. It is intended to provide a more balanced and fairer law than what went before which was often seen as costly, complicated and unfair. Prima facie it shifts the balance in favour of free speech but that remains to be seen.
  1. There are a number of important changes to the previous law, expansion of existing areas and the replacement of a number of common law defences with statutory ones. The limitation period of 1 year remains unaffected.

What is actionable?

  1. There is no change to what is prima facie defamatory. That is the publishing of a statement which lowers the individual or the company in the estimation of right thinking members of society generally. Broadly, the test is whether a statement would cause one to think less of the person or company to whom it refers. However now all claimants must in addition prove “serious harm” to their reputation and for companies (strictly “bodies trading for profit”) they will not be taken to have suffered serious harm unless it has caused or is likely to cause the body serious financial harm. The practical effect of this is to make it more difficult for companies to sue. Third parties may be more inclined to criticize a company or the products/services it offers. The serious harm requirement is likely to see more strike out applications from Defendants particularly where for example the claimant has a bad reputation anyway or where the publication is very limited.
  1. One important change is the introduction of a “single publication rule” by §8 of the Act. Previously, every publication of a defamatory statement gave rise to a separate cause of action. This was particularly problematic with online material where each “hit” to a website was a fresh publication.  The new rule means that a claimant will be prevented from bringing an action in relation to publication of the same material by the same publisher after the expiry of a one-year limitation period from the date of the first publication of that material to the public, or a section of the public. However, this will not apply if the same material was republished by a new publisher or if the manner of publication was materially different from the first publication. So for example if an article on a website is given a higher level of prominence this is likely to mean it is a materially different publication.

Statutory defences

Truth

  1. There is now a statutory defence of truth which replaces the common law defence of justification. It applies if the Defendant can show that the imputation conveyed by the statement complained of is substantially true. That means not everything that is said needs to be show to be true but essentially the “sting” of the allegation needs to be substantially true. It is not anticipated that this changes the existing law materially other than providing the defence in statutory form.

Honest opinion

  1. §3 of the Act abolishes the common law defence of “fair comment” and replaces it with what is mean to be a less technical defence “honest opinion. The new defence requires that:
  • the statement complained of was a statement of opinion
  • the statement complained of indicated, whether in general or specific terms, the basis of the opinion; and
  • an honest person could have held the opinion on the basis of any fact which existed at the time the statement was complained of OR anything asserted to be a fact in a privileged statement published before the statement companied of
  1. There are a number of important points:
  • under the new law the commentator appears to not need to know the fact upon which an honest person could have held the opinion (it will however remain important to distinguish between whether something is a comment or a statement of fact)
  • the comment no longer needs to be in the public interest
  • The defence is defeated if the claimant shows the Defendant did not hold the opinion (this simplifies the previous requirement of showing malice to defeat the defence but in practice may prove difficult for a claimant to prove in most cases
  • similarly, where a publisher publishes the opinion of another person the defence is defeated if the claimant shows that the defendant knew or ought to have known that the author did not hold that opinion

publication on a matter of public interest

  1. §4 introduces the defence “publication on a matter of public interest”. This abolishes the common law defence of “Reynolds privilege” but is thought to be intended to broadly reflect it. It will be a defence to an action for the Defendant to show that
  • the statement complained of was, or formed part of, a statement on a matter of public interest; and
  • the defendant reasonably believed that publishing the statement complained of was in the public interest
  1. the requirements under Reynolds including responsible journalism and acting both fairly and responsibly in gathering and publishing information are not expressly cited in the Act. However the section requires the Court when assessing the Defendant’s reasonable belief to “make such allowance for editorial judgment as it considers appropriate” and to consider “all the circumstances of the case”. This is broad and it seems likely the Court will continue to consider similar factors as in Reynolds such as the steps taken to verify the information. So, for example, if inadequate steps were taken then the Court is unlikely to find reasonable belief as being satisfied.

Additional protection for intermediaries

  1. There are additional defences incorporated for intermediaries being:
    • For an operator of a website which did not post the defamatory statement complained of (§5 of the Act)
    • For a person who was not the author, editor or publisher of the statement complained of, where it is not reasonably practicable for an action to be brought by the claimant against the author, editor or publisher (§10 of the act)
  1. The defence of the website operator can be defeated if the claimant shows that it was not possible for the claimant to identify the person who posted the statement, the claimant gave the operator notice of the compliant and the operator failed to respond in accordance with any provision contained in the regulations.
  1. The second defence listed above is aimed at giving greater protection to secondary publishers such as booksellers. This takes away any action against them except where it is not reasonably practicable for the claimant to bring an action against the author, editor or publisher.

Absolute and Qualified Privilege

  1. The new act extends the absolute and qualified privileges contained in the Defamation Act 1996. The main changes are an extension of reports of Court proceedings to include proceedings anywhere in the world. Also, in terms of qualified privilege there is a new privilege for fair and accurate reports of proceedings at press conferences or at scientific/academic conferences.

Removal of Statements

  1. Interestingly §13 gives the Court power to order in an action where it has given judgment for the claimant to order the removal of the statement complained of. This is useful for example where no action could have been brought against a website operator because the website operator did not post the statement and say the claimant could identify the individual responsible. This allows the Court to Order the website operator to remove the statement even though the Claimant could not have brought an action against it. The same would apply to a distributor of material, a secondary publisher, who would have a defence under section 10.

Trial without jury

  1. The presumption that defamation actions will be tried by jury has been removed and reversed so that cases will be tried without a jury unless the court orders otherwise. This is aimed to help cases be determined more quickly and efficiently. So the court can now determine maters which had previously been left to a jury such as a meaning of a statement which is capable of being defamatory. Parties are likely to seek early determination by the Court of meaning which will help narrow issues and hopefully resolve cases earlier.
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