Have your say on the draft Defamation Bill

08 April 2011

The new committee set up to examine the draft Defamation Bill is today calling for evidence to be submitted on the provisions of the draft Bill. The joint committee comprises 6 MPs and 6 peers and will take oral and written evidence on the draft Defamation Bill, culminating in a report of recommendations to Parliament and Government, expected by the end of October 2011

The Committee met for the first time today and elected Lord Mawhinney of Peterborough as Chairman.

The first evidence on the Draft Bill will be heard on Wednesday 27th April, from Lord Lester of Herne Hill. The session will begin at 9.30 am

The Committee would like to invite written submissions to assist it in its scrutiny of the draft Bill. The areas it will examine include:

Clause 1: definition of defamation; a "substantial harm" test

  • Should there be a statutory definition of "defamation"? If so, what should it be?

  • What are your views on the clarity and potential impact of the "substantial harm" test, including its relationship to other elements of the current law such as the presumption of damage in libel claims?

Clause 2: Responsible publication in the public interest

  • Will the responsible publication defence overcome the concerns associated with the existing Reynolds defence? If not, what changes should be made?
  • Should the meaning of “public interest” be defined or clarified in any way, particularly in view of the broader meaning of this term in relation to the existing fair/honest opinion defence? 

Clause 3: Truth

  • What are your views on the proposed changes to the defence of justification? In particular, would it be appropriate to reverse the burden of proof in relation to individuals or companies?

Clause 4: Honest opinion

  • What are your views on the proposed changes to the existing defence of honest comment? Should the scope of the defence be broadened? Is its relationship to the responsible publication defence both clear and appropriate?

Clause 5: Privilege

  • Are the proposals to extend the defences of absolute and qualified privilege appropriate and sufficient?
  • Is there a case for reforming the Parliamentary Papers Act 1840 and other aspects of Parliamentary privilege within the draft Bill (in the light of recent coverage of super-injunctions); or should this be addressed by the (forthcoming) draft Parliamentary Privilege Bill?

Clause 6: Single publication rule

  • Do you agree with replacing the multiple publication rule with a single publication rule, including the “materially different” test? Will the proposals adequately protect persons who are (allegedly) defamed by material that remains accessible to the public after the one-year limitation period has expired?

Clause 7: Jurisdiction – "Libel tourism"

  • Is "Libel tourism" a problem that needs to be addressed by the draft Bill? If so, does the draft Bill provide an effective solution? Is there a preferable approach? 

Clause 8: Jury trial

  • Do you agree that the existing presumption in favour of trial by jury should be removed? Should there be statutory (or other) factors to determine when a jury trial is appropriate? 

Consultation issues

  • Does the current law provide adequate protection for internet service providers (ISPs), online forums, blogs and other forms of electronic media?
  • What are your views on the proposals that aim to support early-resolution of defamation proceedings? Do you favour any specific types of formal court-based powers, informal resolution procedures or the creation of a libel tribunal?
  • Is there a problem with inequality of arms between particular types of claimant and defendant in defamation proceedings? Should specific restrictions be introduced for corporate libel claimants?

Overarching issues

  • Do the proposals in the draft Bill and Consultation strike an appropriate balance between the protection of free speech and the protection of reputation? What is the relationship between privacy and reputation?
  • Will the draft Bill and Consultation proposals adequately address the problems that are associated with the current law and practise of defamation? If not, what additional changes should be made?
  • Are there any other issues relating to defamation that you would like to raise?

Deadline for submissions

Submissions, which should be original and not copies of papers written for the Government consultation or any other inquiry, must be received by Tuesday 19th July. However, owing to the short timetable the Committee is working to, papers received by the end of May are most likely to influence the work of the Committee.

Further Information

 

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