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Wednesday 12th December 2012 | 00:01
The Joint Committee on Human Rights (JCHR) today publishes a Report on the Defamation Bill, ahead of the first day of the Bill's Committee stage in the House of Lords on 17 December.
One of the Bill's main provisions is the introduction of a statutory defence for responsible publication in the public interest, which would put in place a checklist of factors for consideration by the court. The Committee considers the proposed defence to be inflexible, and thinks that it would both fail to rebalance the law of defamation in favour of freedom of speech and perpetuate existing problems. The Committee recommends that the checklist be abandoned in favour of a clear, unambiguous defence of public interest, which gives proper consideration to editorial judgment. The Committee therefore suggests an alternative formulation, which would use a test of "reasonable belief that the publication was in the public interest", that it believes will provide greater clarity and flexibility.
The Committee is concerned that another proposed defence for website operators - available where they do not author content and either facilitate contact with the author or remove material where they cannot establish contact - could create a 'chilling effect' for material online. It recommends that the threshold for such material be raised from defamatory to unlawful to protect against that threat. A defamatory statement is one that damages the reputation of an identifiable person or company. It is only unlawful, though, if there are no defences that can be made against a claim for defamation, such as if the statement is true or if there is a public interest that the information should be published and the publisher has acted responsibly in testing the truthfulness of it. As the obligation to remove material could put universities and colleges in a position of potential conflict, because of their duties to protect freedom of speech, the Committee also recommends that there should be statutory guidance to help educational institutions decide what they should do.
The Committee also:
* Calls for the Government to provide reassurance that those republishing defamatory material will be properly protected by the proposed clause establishing a "single publication rule". If it cannot, the Committee encourages the Government to explore an alternative defence of "non-culpable republication";
* Recommends that the Bill be amended to ensure that corporate claimants can sue only where there is substantial financial loss incurred, an issue not addressed in the Bill at present; and
* Welcomes the Government's work with the Civil Justice Council to consider the legal aid regime in the area, but stresses the need for a solution to ensure that all persons, regardless of financial means, can access justice in defamation proceedings.
Dr Hywel Francis MP, the Chair of the Committee, said:
"The Bill is a timely response to a pressing issue, and we welcome the Government's recognition of the need for more protection for those publishing in the public interest. However, we are not convinced that the Bill's proposed public interest defence does that effectively. We propose an alternative that is both clearer and more flexible. This would help to ensure that the Bill fulfils its main aim of rebalancing the law of defamation in favour of freedom of speech."
"We are also glad to see steps taken to protect website operators who are merely hosting content. But as drafted the Bill could have a chilling effect on those publishing material online. If we are to protect against that threat, there should be a higher threshold put in place before material has to be removed, and statutory guidance for educational institutions that makes clear the importance of freedom of speech."