The common law of defamation is structured around Article 10 of the European Convention of Human Rights, which provides protection for freedom of expression.

   Clause 9 in the Defamation Bill deals with the responsibility of publications and introduces a “framework of liability that is capable of dealing flexibly with technological advances in the transmission and storage of information.” Whilst replacing the statutory defence of innocent dissemination, it seeks to draw out all uncertainties regarding secondary publishers and provides liability to a secondary publisher who had control surrounding the content of the publication. Clause 9 (1)(a) provides a complete defence to facilitators, defined by clause 9(6) as being a person involved in only the transmission or storage but has no control over the content.Clause 9(1)(b) gives protection to broadcasters in circumstances where it is not reasonably foreseeable that the words would be published.

   However it is uncertain how far this extends the protection that is already provided by the EU Electronic Commerce Directive. The definition of a facilitator suggests that the defence doesn’t go much further than the defence provided by EU Electronic Commerce Directive to those that act as “mere conduits” or involved with “hosting”. The proposed bill does not specifically restrict facilitators to those who store electronic data and therefore suggests facilitators could include people who store the content of publication in other ways. For example booksellers can easily be seen to store contents of publication and have no control over the contents and material but the bill does not specifically state that they are provided by absolute protection.

   Anyone other than a primary publisher who does not fall within the definition of a facilitator is provided for with a defence by Clause 9(2), “until the defendant has received notice that the material he is involved in distributing is defamatory has the opportunity to investigate the complaint.” It then gives a period of 14 days for the claim to be investigated and if not removed they will be liable and assume the position of a primary publisher. Although it gives an honest publisher time to remove the material it seems that this defence assists a secondary publisher who could be shown to have known or had reason to believe the publication is defamatory. This is unfair as the defendant should not be able to rely on this defence where the claimant can show that the secondary publisher should have known the publication was infact defamatory.

   Clause 10 of the bill would remove the rule surrounding multiple publications which derived from the case of Duke of Brunswick v Harmer 1849 with a single multiplication rule. Under existing English law every time a defamatory statement is published a new cause of action arises against each publisher which brings liability to anyone from author to bookseller. In the case of Slipper v BBC (1991) it was held that where repetition of a defamatory statement is a probable consequence of the original publication, the original publisher is liable. However this was doubted in the case of McManus v Beckham (2002) where it was held that a simple test of reasonable suggested imposed an unfair burden on the defendant and liability should only be imposed where repetition of defamatory statement would cause further damage to claimant. 

   Each publication is subject to one year limitation period for claims to be brought before a court. This potentially creates open ended liability as every time a publication is accessed it is a new cause of action. This is risky because as long there is defamatory material to be accessed on the internet or a book in circulation, publishers maybe liable as the deadline is run from the first time each is accessed rather than from its original appearance.

   The general effect of clause 10 is that the limitation period to bring about an action starts from the day the publication is first made available to the public. Preventing a claim being made for a publication that was made available more than one year previous. The creation of the single publication rule amends S.4 (a) and s.32 (a) Limitation Act 1980 which is replaced by Schedule 2 Para 8+9 of the bill. The amendment of s.32 (a) provides in schedule 2, a discretionary exclusion of the rule if it is in the interest of the public. For the provision to apply clause 10(2) provides that the defamatory material must be published by the same person on multiple occasions and on each occasion contains the same content. Although it does not apply where a subsequent publication is made in a materially different manner.

   However the single multiplication rule does not seem to strike a fair balance between Art.10 and 8 ECHR. When the one year time period has been exceeded the publisher is free from any liability for its making following its first publication. Although on the internet the availability of past defamatory statements still continue to be damaging and each time it is accessed and read still has the potential to further damage the reputation of the person defamed. There is no doubt that the multiple publication rule is in need of refom and Brid Jordan in his article considers whether introducing the single publication rule would resolve this or if it would be best to amend the rules on limitation periods.   Dr Andrew Scott in his article suggests the introduction of a new defence of non culpable republication which would extend to authors whos work is replicated online and also to online archive publishers and protect where they have lost control of transposed or virralled statements.

   The right of a jury in civil actions is preserved by statute under s.69 Supreme Court Act 1981. as current law stands if any party requests a jury trial, the right exists unless the case concerns `prolonged examination of documents, accounts or scientific or local investigation.`The juries main role in a defamation cases is to decide whether the words complained of have been published and if they are of a defamatory nature.

   Under this Act if there is a material issue of fact, s.69 entitles parties to trial by jury but it is for the judge to decide if there is a material issue of fact. If there is not then there is nothing for S.69 to operate. Clause 14 of the Defamation bill seeks to reverse the presumption of a trial by jury which aims to fix the problems of the effective management of cases. Jury trials can be very time consuming and therefore expensive. An example of this provided by Lord Lester is that often parties cannot agree on the meaning of the words and of course the claimant is likely to assert that the words have a more serious meaning than the defendant would. A number of important issues depend upon the determination of the meaning so it is crucial for the jury to correctly assert the meaning. If the jury fail to reach a conclusion or an agreement of question, results in a discharge of the jury and order for a retrial at yet more time and cost.

 

   

  The effect of the clause means cases will only be tried by a jury where the interest of justice overrides concerns the effective management of cases and amends S.69(1)(B) Supreme Court Act 1981 making jury trials an exception rather than a rule. Essential factual questions that are to be decided by the jury obviously cannot be decided until the trial. If there was an early determination of the meaning before trial it would prove to be time efficient and would result in many cases being settled at an early stage.

   It is also the role of the jury to determine the award of damages to the claimant. This has caused problems due to the excessive amounts being awarded. In the case of Tolstoy Miloslavsky v UK (1996) it was held by ECHR that the award of 1.5 million pounds contravened Art.10 ECHR. The unpredictability of a damage award by a jury is one factor which dissuades settlement of an action and encourages `gold diggers` to bring and continue with proceedings. Although to counter this criticm there is now a ceiling on general damages

   However the recommendation in the Defamation Bill that the presumption of a trial by jury to be reversed and the decision in the recent case of Fiddes v Channel 4 (2010) has once again given rise to the question whether jury trials are needed in an action of defamation. Judge Tugendhat decided against a jury as he believed amongst other thing it would increase the cost of the action. The Court of Appeal upheld his decision and could arguably jeopardise the future of trial by jury in defamation cases.

   Clause 15 sets out how the application for a jury is to be determined. Certain circumstances in a case may require an order for a trial by jury if it is in the interest of justice to do so set out in clause 15(3).

   The current law on defamation is costly and out of date with regard to the technological advances in publishing such as the internet in today’s society. Lord Lester in his Defamation Bill proposes to strike a fair balance between freedom of expression and privacy of reputation whilst to reassess the uncertainties of the present law.

   Whilst it proves to be true that an action in defamation can be tried by jury undoubtedly leads to inefficient case management as it is a lot more costly and time consuming than by judge alone. Juries represent an essential part of the English legal system and have been perceived to be protectors of freedom of expression. However it is now questionable whether they do in fact as now it seems they have become an obstacle to that protection. Although with this in mind, the right to a jury trial remains an important constitutional right and should not be disregarded without considerable thought.

   The new `take down defence` the bill proposes, it is uncertain how far it expands the protection that is already provided and does not specifically categorise and restrict `facilitators` to those who store electronic data, suggesting it could include people who store contents of publications in ways other than electronically for example bookshops but does not specifically state in cases like this that absolute protection is provided. In relation to the single publication rule if this was incorporated into law it could mean that defamatory statements are still accessible on the internet and can continue to have bad effects on a persons reputation especially in reference to the internet and online archives.

   

                                Media Law Assignment (LC2S023)

                              Glamorgan ID Number: 09130489

                               Blackburn ID Number: 20213544

                                       Submission Date: 08/02/11

                                            Tutor: Ian Ashworth

                                     Bibliography

Books

Cook, J., Law of Tort, 2007, 8th ed., Pearson Longman

Horsey. K., Rackley E., Tort Law, 2009., Oxford: University Press

Kinder.R., Torts, 2007, 9th ed., Oxford: University Press

Nicol, A., Robertson, G., Media Law, 2002, 4th ed., Sweet and Maxwell

Electronic Sources

“What does Lord Lester’s Defamation Bill Purpose?”  (site visited 29.01.2011)

“Defamation Bill 2010 explanatory notes”  (sive visited 03.02.2011)

“Lord Lesters Defamation Bill 2010- A Distorted View of the Public Interest”  (site visited 03.02.2011)

Jordan. Brid., “existing defamation law needs to be updated so that it is fit for the modern age” (2010) 21(2) Entertainment law review 41-47

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