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

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   Defamation can be defined as a publication of an untrue statement of fact by words that expose them to hatred, contempt, or ridicule; which is likely to make a reasonable and respectable person think less of the claimant. Alternatively, tend to make the claimant, “be shunned and avoided and that without any moral discredit on the claimants part.” There are two types of defamation under English law, libel being a defamatory statement made in writing and films which is in some sort of permanent form. Slander is a defamatory statement made by words of mouth or gesture. 

   The common law of defamation is structured around Article 10 of the European Convention of Human Rights, which provides protection for freedom of expression. Article 10 ECHR however is restricted to several derogations in Article 10 (2) ECHR, one of which is the protection reputation.  This Article requires law in relation to defamation, to draw a balance between freedom of expression and protection of reputation. Whether English law does this is questionable and has been subject to many criticm which will discussed further on.

   The Defamation Act 1996 exists to protect the reputation and good standing of an individual. The claimant must be able to prove that they have a reputation to which damage can be done and also to show that their reputation has been damaged in order to pursue a successful claim.

   On May 26th 2010 Lord Lester of Herne Hill introduced the Defamation Bill 2010 which contains provisions and proposals for possible amendments to the Defamation Act 1996. The bill seeks to reduce the chilling effect on freedom of expression and to reassess the vagueness and uncertainty of the present law, whilst providing an effective and proportionate remedy to a person who has been unfairly defamed. Amongst several proposals introduced,Lord Lester refers to publication of defamatory material set out in Clause 9 and 10. 

   It is essential that publication of the defamatory statement must be communicated to a third party. As Judge Bray stated, “there is no doubt that to give rise to an action in defamation there must be a publication by the defendant. That is the foundation of the action.” Previously any person at common law who distributed a defamatory statement was liable, including not only the author, publisher or editor but also the wholesaler and retailer even if unaware of the defamatory statement. However the widths of potential liability lead to the Statutory defence of innocent dissemination. 

   The Defamation Act 1996 provides a defence of innocent dissemination to those who are only involved in the distribution of the material, so long as they have shown reasonable care and that they were unaware that what they did contributed to the defamatory statement. The Act also defines those primary publishers as author, publisher and editor and cannot rely on this defence. S.1 Defamation has supplemented the common law defence of innocent dissemination, which was established in the case of Vizetelly v Mudie`s Select Library (1900)and extends the defence to `Mechanical Distributors` including printers and broadcasters who previously fell outside of the common law defence; where they have no effective control over the person making the defamatory statement.

   The Act also covers defamatory on the internet. An Internet Service Provider is entitled to use this defence as they do not fall within the definition of a publisher. However where an ISP receives a notification of a defamatory statement they will be liable and held responsible they fail to remove. This can be seen in the case of Godfrey v Demon Internet Ltd (1999) where ISP received a notification of defamatory content but failed to remove it. This amounted in failure to exercise reasonable care when it was known that what they had done had contributed to the publication of the defamatory statement. It was held that under s.4 Defamation Act a person may sue for defamatory material on the internet even if the action is brought more that one year after the first publication.

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   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 ...

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