Introduction
Defamation laws have overwhelming dominance when it comes to the traditional right to reputation. However, the Defamation Act of 2013 has concerns in that it has “gaps” in the protection it provides. In other words, the Defamation Act of 2013 “heightens concerns that gaps in the proper protection of natural person’ traditional right to reputation may have emerged” (Eridos, 2014, p. 537). This paper assesses the Defamation act 2013 and whether or not it strikes the right balance between freedom of expression and the right to reputation.
Defamation Act of 2013
The Defamation Act of 2013 was created in order to amend the law of defamation. “In April 2013, the Defamation Act received the Royal Assent as the culmination of a four-year political campaign and a multi-stage pre-legislative process” (Mullis & Scott, 2014, p. 87). There are several requirements in order for something to be consider defamation. The main requirement of defamation is serious harm. Serious harm states that an action is not defamatory unless it causes serious harm when it comes to the reputation of the claimant. For purpose of defamation, the term “harm” is only satisfied if the statement causes serious financial loss for the individual. However, there are some defences when it comes to defamation. Some of these defences consist of the truth and honest opinion. These defences state that the action is not defamation if the statement is substantially true or is a statement of opinion (Defamation Act 2013).
Right to reputation
Reputation is defined as “[t]he general opinion or estimate of a person’s character or other qualities; the relative esteem in which a person or thing is head” (Eridos, 2014, p. 537). There is a long standing consensus that the right to reputation is a foundational importance throughout society.
“Defamation law has long enjoyed a position of clear dominance in the vindication of the traditional right to reputation” (Eridos, 2014, p. 540). Originally, the law provided protection to against any publication that may have an adverse effect on an individual’s reputation. The Defamation Act of 2013, however, found that the current law on defamation was unduly when it came to freedom of speech. Thus, the Defamation Act of 2013 created the serious harm requirement which created another defence to defamation: truth and honest opinion.
Discussion
Effects on current cases of defamation
Before the Defamation Act of 2013, the defamation law was governed by the Defamation Acts of 1952 and 1996. The introduction of the Defamation Act of 2013 has brought several changes in the way the UK handles defamation law. First, the act states that an action is not defamation unless it caused of is likely to cause “serious harm” to the reputation of the individual. Furthermore, when it comes to corporations, the corporation must probe that the comment had led the company into financial loss. This requirement reverses what was traditionally held. “Serious harm” was not a requirement prior to the creation of the Defamation Act of 2013.
Proving that a claimant has suffered of is likely to suffer serious harm when it comes to the comments restricts the scope for the potential claim. Thus, the Defamation Act of 2013 will cause fewer cases to be brought to the court system. This requirement is considered strict when it comes to defamation laws. The burden is left on the claimant in order to prove that the statement of action has or will cause damage to their reputation, and/or financial loss.
Next, the Defamation Act of 2013 created more defences for defamation. These defences are truth and honest opinion. In one case, Joseph v Spiller, “the court found that even though a comment was made with malice or spite, it was only necessary that the comment was honest and the facts were true” (Eridos, 2014, p. 553). There is an extension of absolute privilege to fair, accurate, and contemporaneous reporting of courts worldwide as well as a broad range of international courts and tribunals” (p. 553). Thus, it does not matter whether or not the person has malice intent, if the facts are true then it is not considered defamation.
The Defamation Act of 2013 also introduced the “one year” rule. This means that a claimant only has one year after the defamation act to bring suit regarding that behavior. This will affect how many people bring their cases to court.
Effects on media industry
The Defamation Act of 2013 has had several positive effects on the media industry. Not only is it harder for a claimant to bring a defamation suit to the court system, it is also easier for the media to be found not liable when it comes to damage of their defamation statement. This is due to the increased number of defences the Defamation Act of 2013 provides the media. The Defamation Act of 2013 gives the media clear defences when it comes to defamation. It also changed the way the media was able to present information regarding other individuals. They can state whatever they would like as long as it is true or is an honest opinion.
For example, the media published a potentially harmful article regarding true facts about the claimants divorce. The media published the articles with malice due to the fact that the claimant had been harassing the media publication company. The court found that the media company had not committed defamation because the facts in the article were true and malicious does not have an effect when it comes to “honest opinion”. This case is one of the several that makes the Committee wonder or not there needs to be more clarity when it comes to the “honest opinion” defence and whether or not malicious should be taken into consideration (Potter, 2013, p. 2).
In one case, the importance of mainstream media as considered. In this case, the claimant failed to show that the defamation statement was damaging to their reputation because the statement was made on local news and not mainstream media. Thus, the statement did not meet the requirements of defamation. This is an example of how the Defamation Act of 2013 can have a detrimental impact on the claimant (Mullins & Scott, 2014, p. 98).
Another case analyzed the impact of a defamation statement in regards to social media. The claimant brought suit on a media company for publishing defamatory comments regarding her personal life. It was found that a statement did not qualify as defamation because the statement had no adverse reaction to the claimant’s social media sites. The court used the claimants social media site in order to dictate whether or not the individual had sustained damages in regards to her reputation. The court found no adverse effects of the statement in regards to her social media page. Thus, the statement was not considered defamation due to the fact that it did not have an adverse effect on her reputation (The Student Lawyer, 2016).
Overall, the Defamation Act of 2013 has only made it easier for the media to publish stories about other individuals that could be perceived as harmful and get away with it. The Defamation Act of 2013 has made it more difficult for a claimant to bring a defamation suit in court. Furthermore, even if the claimant is able to get the case to court, the Defamation Act of 2013 has given the media more defences in order to not be held liable for their defamatory publications. The burden is on the claimant to prove reputable harm and the media is given several different defences in order to not be held liable. The Defamation Act of 2013 has not created a balance when it comes to freedom of speech and right of reputation. The Defamation Act of 2013 has only increased the media’s right when it comes to freedom of speech, while making it harder for an individual to fight for their right to reputation.
Conclusion
The Defamation Act of 2013 does not strike a balance when it comes to freedom of speech and right to reputation. The “serious harm” requirement of the law makes it more difficult for people to bring suit against an individual. The claimant must show the defamatory statement or action has or will bring them “serious harm” when it comes to their reputation. Furthermore, the “one year” rule also makes it more difficult to bring suit against a person or other entity. By only allowing the claimant one year to file a claim, the claimant is put at a disadvantage. One defamatory statement could take longer than one year to damage an individual’s reputation. Thus, an individual may not be able to bring suit against an individual or a company unless the result of the defamatory statement effects the individual within one year the statement was made. This makes it difficult for an individual to bring a defamation suit against the media in the court system. Especially in this day in age with the growing access to technology. Also, the Defamation Act of 2013 created more defences when it comes to defamation. This also makes it easier for someone to not to be held legally responsible when it comes to a defamation suit. Overall, the Defamation Act of 2013 has made it more difficult for a claimant to bring a defamation suit in a court of law, as well as giving the individual responsible for the defamation more defences in order to not be held legally responsible
References
Akhtar, Z. (2014). Social networking, liber and legal liability. Journal of Internet Law, 17(12), 3 12.
Defamation Act 2013. (n.d.). Retrieved on 9 March 2016, from http://www.legislation.gov.uk/ukpga/2013/26/crossheading/summary-of-court judgment/enacted
Eridos, D. (2014). Data protection and the right to reputation: filling the “gaps” after the defamation act 2013. Cambridge Law Journal, 73(3), 536-569.
Mullis, A. & Scott, A. (2014). Tilting at Windmills: the Defamation Act 2013. Modern Law Review, 77(1), 87-109. ]
Potter, M. (2013). The Defamation Act 2013. Northern Ireland Assembly, 1-16.
The Student Lawyer (2013). Defamation Act 2013 – what’s changed? Retrieved on 9 March 2016, from http://thestudentlawyer.com/2013/08/19/defamation-act-2013-whats-changed/
