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15 Comm. Law. 12 (1997-1998)
The United Kingdom Defamation Act 1996

handle is hein.journals/comlaw15 and id is 36 raw text is: The United Kingdom Defamation Act 1996 NICK BRAITHWAITE The United Kingdom Defamation Act 1996 was conceived with the modest aim of simplifying defamation practice and procedure, but in the end the Act introduced some significant new rights for both plaintiff and defendant. Parlia- ment missed the opportmity to intro- duce a new public figure or public interest defense, yet at the instigation of a single Member of Parliament (M.P.), it passed a measure eroding the rules of parliamentary privilege, one of the pil- lars of the unwritten constitution in the United Kingdom. Useful changes have been made at the margins, but the media-hostile character of the U.K.'s defamation laws remains largely unchanged, and the Act does little to redress the fundamental imbalance between libel plaintiff and defendant. The main purpose of this article is to sketch the changes made by the 1996 Act. To set these in context, it is neces- sary to explain a little of the constitu- tional background and the recent libel litigation climate in the U.K. The U.K. has no written constitu- tion. Libel law in the U.K. (largely a creature of the common law) shares antecedents with the pre-Sullivan libel law in the United States and places heavy burdens on the defendant. The principal differences from the post-Sul- livan U.S. libel law are: * The absence of any requirement to prove fault on the part of the defen- dant (strict liability); * The absence of any requirement for the plaintiff to prove falsity; and * The general absence of special pro- tections for the media in reporting matters of public concern. Nick Braithwaite is a media lawyer with the firm of Clifford Chance in London and editor of The International Libel Handbook He gratefully acknowledges comments of Michael Smyth, head of the firm's media litiga- tion group, in preparing this article. European Convention on Human Rights The U.K. is a signatory to the European Convention on Human Rights, Article 10 of which provides a qualified pro- tection for free speech, but the Conven- tion until now has not been incorporated into U.K. law.' Although a broad liberty of freedom of expres- sion is part of the common law, it is in practice balanced with-and some- times subordinated to--other compet- ing rights, in particular to individual rights to reputation. The limited protec- tion for free speech is manifested pri- marily in the application of the three established defenses to a defamation action: justification (truth), fair com- ment, and privilege.2 In recent years, the substance and application of the U.K.'s libel laws, in particular English libel laws, have been the subject of sustained criticism from plaintiffs and defendants alike. Plain- tiffs' principal complaint is the absence of state legal aid for defamation litiga- tion.3 There is no system of contin- gency fee funding in the U.K., and the limited version that is available4 does not apply to libel litigation.5 Thus all except the relatively wealthy are large- ly excluded from redress. Defendants, on the other hand, have long complained that jury awards are unpredictable and unappealable. The media argue that the defendant's bur- den of proving truth (without reference to any mental element, as in the U.S. pre-1964) has a chilling effect upon reporting. Judges also have criticized the level of libel awards,6 and the Euro- pean Court of Human Rights has ruled that the highest-ever award of £1.5 mil- lion had infringed the plaintiff s right of free speech.7 Although two recent reforms8 have substantially reduced the force of these charges, by the end of the 1980s there was a widespread view that defamation law and practice had reached an unsatisfactory state. As the cost of litigation spiraled,9 the media frequently were forced for reasons of financial expedience to settle cases they regarded as unmeritorious. Neill Report and the Defamation Law Against this backdrop, in 1990 the Lord Chancellor requested a working group under a senior judge, Lord Justice Neill, to review the practice of defama- tion law. The initial remit was primari- ly procedural, but it soon became clear that there was support for reform of aspects of the substantive law. Five years after the publication of the Neill Report,10 Parliament passed the Defamation Act in July 1996. Its main reforms2 are: * Modification of the constitutional rules of Parliamentary privilege so as to enable those affected, princi- pally Parliamentarians, to waive that privilege in defamation proceedings (Section 13-in force); Extension of statutory absolute and qualified reporting privilege to cover a much wider range of proceedings (Sections 14 and 15-not in force); * Replacement of the existing unin- tentional defamation defense under the Defamation Act 1952 Section 4 with a new offer of amends defense to discourage gold-digging plaintiffs (Sections 2-4-not in force); * A new fast-track summary proce- dure to dispose of minor or clear-cut cases (Sections 8-11 -not in force); * A new test of capability, as opposed to arguable capability, in relation to the meaning that words can bear (Section 7-not in force); * A new defense for innocent distribu- tors and disseminators (Section 1-in force). It is noteworthy that no public interest or public figure defense was intro- duced, and a proposed reform aimed at preventing plaintiffs from recovering damages for an undeserved reputation was dropped. Of lesser note are: * Reduction of the limitation period from three years to one in England, 12 [ Communications Lawyer Summer 1997

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