Reputation management: What does the future hold?05 Aug 2016
In the past, claimants – even those with little or no connection to England and Wales – have favoured the UK when bringing a claim for defamation. This is because defamation laws in the UK are generally more favourable to claimants. However, with the introduction of the Defamation Act 2013 and the recent Brexit decision, is all of this set to change?
France, Germany, and the United States of America
Defamation law in France is known to favour defendants because of the procedural requirements placed on claimants. As well as claimants having to prove the publication of statements, clearly identify the defamatory words and explain why the words are defamatory, claimants also need to notify the Public Prosecutor of the claim. All of this needs to be done within 3 months of publication of the defamatory statement otherwise the claim will be void. This time limit is short when compared to the limitation period of one year in the UK.
In the USA, defamation law is closely tied to the US Constitution, specifically the First Amendment. To succeed in bringing a defamation claim, there needs to be an ‘underprivileged and false statement’ which causes ‘material harm’ and actual negligence or malice. This means that any opinions published in the US cannot be defamatory. Not only that, section 230 of the Communications Decency Act means that internet service providers, including websites, companies and social media platforms, cannot be found to be guilty of defamation.
In Germany, press standards are fairly relaxed and so favour defendants. This is because, even if investigations concerning things such as potential misconduct or abuse have not been concluded, the press is still allowed to report on them if there is said to be public interest. Provided that the publisher or broadcaster has carried out a thorough investigation, the public interest defence can sometimes succeed even if the statement is false. Although it is fairly straightforward for a claimant to obtain an injunction which is temporary, the relaxed press standards in Germany mean that the more well-known a person is, the more criticism they have to tolerate because of the widely used public interest defence.
Defamation Laws in the United Kingdom – the future
In the UK, defamation law is based on common law but has been substantially modified by the Defamation Act 2013. Whether something is defamatory or not is interpreted by the courts on a case by case basis and it is determined whether or not the statement would lower the estimation of the concerned person in the eyes of right thinking members of the public. The court also looks at whether the statements have been communicated to a third person and whether it is possible to identify the individual. The Defamation Act 2013 introduced a further requirement for the Claimant to prove that the defamatory statement has caused or is likely to cause serious harm.
Whilst the Defamation Act 2013 does not go as far as other laws, for example s.230 of the Communications Decency Act in the US referred to above, the Act’s aim is to shift the balance in favour of more free speech. The aim of the Act is to also target ‘libel tourism’ not only by introducing the new ‘serious harm’ test, but also by tightening the test for claims involving those with little or no connection to England and Wales. The aim of preventing ‘libel tourism’ might also be furthered given the recent Brexit vote because, once the UK leaves the European Union, it will be more difficult for a Claimant to establish jurisdiction in England and Wales when the Defendant resides in another EU member state.
Our Intellectual Property team has significant experience acting for businesses and high profile individuals by preventing or correcting publications which are not justified or fair comment. For advice, please contact a member of the IP team on 0161 838 7816.