Opinion: England's new defamation legislation sets benchmark

by 05 Feb 2014
Article by: Quayside Chambers media-law barrister, Ali Romanos

The Defamation Act 2013 (UK) has introduced a raft of new provisions for London’s libel lawyers to navigate. Certainly, the editors of Gatley on Libel and Slander have had their hands full anticipating the consequences – intended or otherwise – the Act is likely to generate.
But England’s new legislation is laudable. It looks fit to tackle the current challenges in the world of defamation which flow, unsurprisingly, from the ineluctable evolution of social media. The Act’s highlights include:
  • A provision to curb ‘forum shopping’ (s 9);
  • Provisions regulating website operators (ss 5 and 13);
  • A public-interest defence, which concurrently abolishes the common-law Reynolds defence (s 4) – the equivalent of New Zealand’s political-discussion qualified privilege defence, introduced by the Court of Appeal in Lange v Atkinson; and
  • A defence for peer-reviewed statements in scientific or academic journals, etc. (s 6).
In addition, ironing out the wrinkles in England’s legislative nomenclature, ‘justification’ becomes ‘truth’ (s 2), and ‘fair comment’ becomes ‘honest opinion’ (s 3). In fact, the only thing keeping me from praising the Act unreservedly is the abolition of the presumption of right to trial by jury (s 11). I think this change is a pity and English defamation law the weaker for it, because juries are undoubtedly the best gauges of the ‘ordinary reasonable reader’ – the man or woman in the street whose interpretation of words is not clouded by legal training.
The provision for special mention, though, is s 1(1): “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.” Until now, English defamation law – like New Zealand’s still – was built on the presumption that a prima facie defamatory publication had caused harm. The gravity of harm, meanwhile, was deemed reflected in the amount of damages awarded. It marks a real shift that serious harm is now a requirement for a plaintiff to discharge in order to establish that a publication was defamatory in the first place.
Gatley’s editors note that the legislative requirement of serious harm was influenced by the Jameel principle. In brief, this principle evolved from the English case, Jameel v Dow Jones [2005], in which the plaintiff sued an overseas publication for an article that contained a hyperlink, the contents of which insinuated his involvement in funding al Qaeda. However, the defendant was able to show that only five people in the jurisdiction accessed the hyperlink. This was enough for the English Court of Appeal to strike out the claim as an abuse of process, on the basis that the action could serve no material vindicatory purpose because no real or substantial tort had been committed in the jurisdiction. The Court stated, with reference to the costs and court resources that would otherwise have been incurred: “The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick.”
Since 2005, when Jameel was decided, English courts have considered the Jameel principle dozens of times. It speaks volumes that the principle has been enacted in legislation, though a key distinction is to be noted: whereas the common-law Jameel principle was a tool for the defendant to employ by interlocutory application, England’s new legislation has shifted the onus to the plaintiff to prove that the harm caused was sufficiently serious – that a real and substantial tort was committed, to use Jameel’s language.
It is arguable that the Jameel principle sacrifices for expediency a plaintiff’s ‘right to their day in court’. Certainly, the principle has been rejected on each of the three occasions New Zealand judges have cautiously considered it. Australia has also rejected it, although the uniform state legislation there actually provides like effect, with defendants having the ability to plead the defence of triviality in cases where “the circumstances of publication were such that the plaintiff was unlikely to sustain any harm”. Both England and Australia, then, have legislation in place to curb trifling defamation suits that drain court resources. By contrast, New Zealand has no such provision. This means plaintiffs are able to pursue claims on ‘technical’ causes of action that are, really, quite unworthy of court resources.
Two recent New Zealand cases spring to mind in which plaintiffs have pursued such ‘technical’ – but, in my opinion, trifling – causes of action. In Dooley v Smith and Moodie v Strachan, plaintiffs sued defendants for comments that were published by print media – the Greymouth Star and New Zealand Listener, respectively. In both cases, initially the plaintiffs also sued the media publishers, before reaching settlements with the latter, which included, crucially, remedial steps by the publications – for Dooley, a front-page retraction, and for Moodie, a public apology. Yet, in both cases, the plaintiffs maintained their actions against the individual defendants – Smith and Strachan – by amending their pleadings to sue only in respect of the oral statements the defendants uttered to the journalists. Under the law, each publication is a separate cause of action. As a result, the settlements reached in these cases did not displace Smith’s and Strachan’s liability in respect of their oral comments.
I think these cases mark a disturbing trend. Any harm occasioned to Dooley’s and Moodie’s reputations was, surely, materially restored by the settlements reached. Yet the proceedings continued because the plaintiffs latched on to live causes of action outside the settlement, though for which I doubt success would have afforded any further vindication. The conclusion must be that New Zealand’s current law allows plaintiffs to effectively seek double-recovery, whether for the purpose of damages, costs or both. In my mind, seeking double-recovery marks an abuse of process.
I feel, therefore, that both Dooley and Moodie are cases primed for Jameel adoption. Of course, the opportunity for any such adoption in Dooley came and went in December 2013 with the Supreme Court’s dismissal of Dooley’s application for leave to appeal the Court of Appeal’s decision against him. Meanwhile, in June 2013, Ronald Young J rejected the Jameel principle in respect of Moodie’s claim. However, it is understood this decision has been appealed, so it will be interesting to observe the Court of Appeal’s approach. It is reminded that adoption of the Jameel principle would not be as groundbreaking as England’s legislation – the principle would remain the defendant’s burden to discharge.
More broadly speaking, wider legislative reform is preferable to judicial intervention on a single doctrine. Indeed, New Zealand’s rather stale Defamation Act 1992 was enacted long before the social-media frenzy, and even some time before the Internet took shape. The result is that our Act contains significant anachronisms, such as a stiff definition of “publication” (s 46(1)) that denies bloggers the same treatment as traditional media, and, moreover, a shortsighted vision that traditional media – newspapers, TV and radio – will rule the roost forevermore. When set against England’s new Act, New Zealand’s legislation looks incongruous with the online era.
A new defamation act would give legislators the opportunity, not only to refresh an outmoded concept of media and enact a threshold of requisite harm akin to England’s, but also to address issues that have surfaced since the early 90s – to name two, the intended scope of truth under s 8(3)(b), and the (tiringly) vexed question: “Does political-discussion qualified privilege extend to local-body politics?” But until that day comes – and let’s face it, defamation-law reform is hardly likely to be a wedge issue in Election 2014 – the courts should not be inhibited to develop New Zealand’s defamation law when the opportunity arises. On this note, I suggest they begin by adopting Jameel abuse of process – a thoroughly pragmatic, but sensible, principle. 

Ali Romanos is a media-law barrister based in Wellington. He can be contacted at ali@aliromanos.com.

Disclosure statement: Romanos acted for Bruce Smith as junior counsel in Smith v Dooley and Another [2013] NZCA 428 and Dooley v Smith and Another [2013] NZSC 155; and assisted counsel for Liz Strachan in the latter's dispute with Robert Moodie (aka Miss Alice).