Home > Uncategorized > Lord Lester’s Defamation Bill and Responsible Publication

Lord Lester’s Defamation Bill and Responsible Publication

Lord Lester has introduced a Defamation Bill in the House of Lords. The Bill covers many features of defamation law, which will require careful consideration. I have just had a quick glance at the Bill and here are some initial comments on one aspect of it, a defence of ‘responsible publication’ of matters in the public interest.

Under the current law, there is a defence of ‘responsible journalism,’ (known as Reynolds privilege),. This applies where the public is on a matter in the public interest and the defendant can show he or she acted responsibly (even if the statement is untrue). Given that this defence already exists, you may ask whether the Bill would make any difference if enacted. The proposed statute is a slightly more simple version of the current common law defence. In this way, it is similar to the defence established by the Canadian courts in December (which itself was modelled on Reynolds privilege). Like the Canadian defence, the Bill is concerned with ‘responsible publication’ rather than just ‘journalism.’ This means the standards are not simply defined according the practices of the established media and instead the courts can consider ‘the nature of the publication and its context.’ This would open the way for the courts to possibly develop different standards for blogs and other web-based publications, rather than imposing the standards of an investigative journalist across the board.

The current common law defence sets out 10 factors to help decide whether the media has acted responsibly, while the Defamation Bill sets out 8. Many of the factors in the Bill are the same as in the common law: the seriousness of the allegation; the steps taken to verify the information; the urgency of the publication; and whether the subject of the article had been given an opportunity to comment. That said, some of the factors in the draft Bill are a little more generic and allow for greater flexibility. For example, the draft Bill asks the court to consider what information the defendant had before publication, whereas under the common law test, the courts were asked to consider the defendant’s sources of information.

Ultimately, the draft Bill is not a radical departure from Reynolds. It is not proposing a blanket defence for publications on political issues made in good faith (of the kind seen in the US). Like the current common law defence, its application would vary from case to case and would depend on the circumstances. It is therefore unlikely to remedy the criticism made of Reynolds about the lack of certainty. If the defence depends on the circumstances of publication, both parties are unlikely to know much in advance whether the defence is likely to succeed (and the more generic factors in the test could add to this uncertainty). It also means that the defence will be expensive to run, given that the court will still have to make findings of fact in relation to the publication. Finally, the critics of Reynolds tend not to focus on the test or the 10 factors, but on the way the courts interpret them. Whether a statutory defence makes any difference would therefore depend on how the judges apply the statutory test.

The point here is not to criticise Reynolds or the draft Bill – the approach taken may well be the best way to balance reputation and free speech. Instead the point is that the proposed defence is not so different from what we already have.

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