Improvements to the Law as Introduced by the Defamation Act 2013 - Essay Example

? Improvements to the Law as Introduced by the Defamation Act Total Number of Words: 2,500 Introduction In relation to freedom of expression and people’s dependency over the use of information technology such as the Internet, the Defamation Act 2013 was enacted in order to improve the existing English defamation law. In line with this, the new Act aims to protect not only the right of each person to express themselves verbally or in writing but also the need to protect the reputation of each person1. To serve this purpose, Defamation Act 2013 was enacted on the 25th of April 20132. On top of setting grounds on freedom to express one’s own thoughts and ideas and the need to protect the reputation of another person or a business entity3, the said Act also applies to the need to control libel tourism4. As such, the Act extends legal protection to website operators by entitling them for a defence in case the website operator is not the one who posted personal comments or statements that could seriously offend other people5. In line with this, the Act requires all individuals and business organizations to submit significant evidences that can prove their claim on defamation6. Under section 5(3)(a) of Defamation Act 2013, it was clearly stated that website operators are given the equal opportunity to prove themselves that they are not the one who posted harmful statements online. Thus, the Act guarantees protection to all website operators provided that they can identify the right person who posted harmful statements. Furthermore, any forms of moderation made by the website operators with regards to the hurtful comments made by other people in their website(s) can validate their defence7. Philosophical lens can be used to investigate how the society would view the concept of freedom of expression within the modern society and perhaps how the Defamation Act 2013 would fit or can be altered to fit in the concept of freedom of expression8. In line with this, reasons why Defamation Act 2013 has failed to provide any significant improvements to the existing law will be tacked in details. 2. Justification on Claims 2.1 Control on Libel Tourism In 1936, Lord Atkin defined libel as a defamatory statement that can somehow cause injury to another person’s reputation. Good examples of libel include publicly commenting on other people due to hatred or purposely disrespecting or ridiculing another person which aims to destroy his own self-esteem9. In line with this, libel tourism occurs when the claimants for libel case is not residing in the same country where the defendant is currently residing (i.e. online libel cases, etc.)10. A good example of libel tourism is the case of Prince Alwaleed bin Talal v Forbes magazine whereby a journalist was legally sued for underestimating the Prince’s fortune by $9.6 billion11. Defamation Act 2013 aims to prevent forum-shopping in such a way that claimants cannot just file a defamation case in London if they have no links to UK. By setting a clear ground or guidelines on libel tourism, it is possible to limit or reduce the number of unimportant claims on defamation. With this in mind, the enactment of Defamation Act 2013 could somehow contribute to the decrease in the number of legal charges on defamation12. The United Kingdom is a member of the European Union (EU)13. Despite the changes in UK’s latest Defamation Act, question arises as to whether or not the Defamation Act 2013 can make significant change in the defamation law in UK. First of all, there is no change in EU Law or law affecting European nationals. Since UK is a member of the European Union, it means that all existing EU laws could somehow affect the defamation law in UK. For instance, the Rome I Regulation is a contractual obligation that administers the choice of law among the members of the European Union14. Since UK is a member of the European Union, this country is not legally exempted wherein the defendant can have the option for a choice of law. Likewise, applicable to all members of the European Union, the Brussels I Regulation15 on jurisdiction allows agreement with regards to their preferred court and jurisdiction which often times result to a partial extension of jurisdiction on the part of the non-EU defendants”16. Specifically the case of Shevill v Presse Alliance is a good example wherein the claimant was given the choice on which courts to sue a newspaper article for a libel case17. In almost all cases, a statement can only be considered as defamatory if the publication has triggered substantial damage to claimant’s reputation18. In line with this, Sweet and Maxwell reported that only three “libel tourism” cases were reported between 2009 to 201019. Aside from exaggerating the issue on libel tourism or forum shopping, it is a common legal practice in UK not to totally ignore or disregards the existing laws or previous Acts on defamation. For this reason, slight changes in the UK defamation law with regards to non-EU or non-UK nationals may have a very little practical effect. 2.2 ISP, Anonymous Publication Defence Section 5 of Defamation Act 2013 pertains to the issue on website operators brings out questions with regards to its practical implications. In line with this, Section 5 of Defamation Act 2013 strongly suggests that website operators have the right for a defence in case the website operators are not the one who posted a harmful statement online whereas section 5(4) stated that the claimant should know or be able to identify the true identity of the person who posted a harmful statement20. It is a common knowledge that website operators Facebook or Google may not necessarily be the main publisher of harmful online contents. Therefore, it is good to protect the website operators from those individuals would wish to cause harmful effects on the psychological and mental health of other people. However, even though the main objective of section 5 in Defamation Act 2013 is to protect the welfare of website operators from global users who would violate the UK libel laws, the guidelines stated under section 5(4) of the Defamation Act 2013 does not really apply to real case scenarios. For example, people who intend to destroy the reputation of another person are more likely to post their remarks online as “anonymous”21. Because of the chances wherein people could post harmful statements using an unknown or mysterious identity, section 5 of Defamation Act 2013 seems to be of little use in terms of its real-life application. Furthermore, the guidelines stated on section 5 of the said Act also suggest that website operators have the right for a defence provided that the complainant is able to identify the person who posted the harmful statement online22. In case the claimant has failed to identify the real person who posted the harmful statement online, the website operators will not have the opportunity for a defence. Section 5(3)(b) of the Defamation Act 2013 strongly suggest that the right of website operators for a defence is not valid in case the claimant decided to send a notice to the operator with regards to libel complaints. Defamation Act 2013 aims to provide each website operators the right for a defence. In reality, website operators are usually not the one who would post harmful statement(s) online. In the process of making the rights of website operators for a defence invalid in case the claimant decided to send notice to website operators contradicts the main goal of Defamation Act 2013. Considering all these arguments, the process of implementing Defamation Act 2013 is not enough to improve the current issues when it comes to the need to protect the website operators. 2.3 Requirements for Corporations to Show Substantial Financial Harm Under section 1(1) of Defamation Act 2013, it was stated that it is not possible to consider a statement as something that is defamatory by nature not unless the statement has triggered serious harm on the claimant’s reputation23. Also, in section 1(2) of Defamation Act 2013, it was mentioned that harm done on the reputation of a business organization should be reflected as a serious financial loss24. In line with this, one can easily argue that significant changes in this particular law does not show any further improvements to the existing laws on trade defamation. First of all, there are cases wherein the act of defaming a business organization will not result to substantial financial damages. Therefore, requiring the business organizations to show substantial financial loss even before the company can sue a person or another company for defamation could mean letting people who clearly violated the law on defamation to get away from their illegal acts. For example, an up-coming local fast food company will compete with other existing fast food restaurants (i.e. Burger King or McDonald’s). Defamation on food businesses can occur by questioning the food safety or hygiene standards of a close competitor. In case other well-established companies decided to destroy the reputation of an entirely new business, it would be very difficult on the part of the new business to prove that defamation has been made to cause the business to loss big amount of money. Within this context, one can argue that the process of requiring business organizations to show signs of huge financial losses25 could mean letting the culprit escape from their wrong deeds. Another possible reason why such changes made on defamation law is that most business organizations are often criticized or defamed by the media in such a way that most of these business organizations cannot measure or show specific figures on how these companies have been financially harmed by negative reports or publicity. Considering this particular scenario, the number of CEOs, COOs and/or other high-level company officers who would legally fight for their claims may simply increase in the near future. In most cases, a significant increase in litigation per se is not a good thing. Furthermore, the most appropriate claimant in this particular case is the business organization and should remain as it is. 2.4 Single Publication Rule Defaming a person through publication that causes him to monetary losses is subject to defamation cases26. Specifically section 8 of Defamation Act 2013 is related to the new guidelines set on a single publication rule. Section 8(3) mentioned that subsequent publications after the limitation period of one (1) year from the time wherein the first publication was made are to be excluded from libel action whereas section 8(4) mentioned that the single publication rule is not applicable to subsequent publications that are printed in different form as compared to the way the first publication was published27. In most cases, it is based upon the discretion of the court to determine whether or not the subsequent publications are printed in different form as compared to the way the first publication was published 28. In reality, people have the right to file a claim for defamation in case a published statement has created damages on the part of another person. Despite the single publication rule, anyone who defames another person using publication method can still be sued for defamation not unless the defendant can prove that the statement he or she has published either in printed form or online is true29. Aside from the fact that the English law strongly recognizes both freedom of press and freedom of speech, the traditional English rule strongly suggest that each process of republication a libellous publication is considered as another ground for a libel case30. Therefore, Section 8 of Defamation Act 2013 is weakened due to the fact that re-published defamatory statements are still punishable under the traditional UK law. 3. Conclusion and Recommendations In relation to the enactment of Defamation Act 2013, it has been argued that major changes that are expected to happen on issues like the need to control libel tourism and the use of anonymous publication defence of companies like Facebook and Google has its own limitations when it comes to its practical implications. Though the main objective of section 5 in Defamation Act 2013 is to protect the welfare of website operators from global users who would violate the UK libel laws, the guidelines stated under section 5(4) of the Defamation Act 2013 does not really apply to real case scenarios since most of the people who intend to destroy the reputation of another person are more likely to post their remarks online as “anonymous”. Section 5 of the said Act strictly impose that website operators have the right for a defence only if the complainant can readily and accurately identify the person who posted the harmful statement online31. In case the claimant has failed to identify the real person who posted the harmful statement online, the website operators will not have the opportunity for a defence. With this in mind, the main purpose of protecting the welfare of website operators may not be realistic after all. Furthermore, being a member of the European Union, existing EU laws such as the Rome I Regulation and the Brussels I Regulation can also apply to all defendants in UK. Specifically the Rome I Regulation is all about the contractual obligation on the choice of law whereas the Brussels I Regulation on preferred jurisdiction and preferred court can also apply to all defendants in UK. On the other hand, Defamation Act 2013 aims to prevent forum-shopping in such a way that claimants cannot just file a defamation case in London if they have no links to UK. By strictly imposing the rule of Defamation Act 2013, it would strongly suggest the need to completely disregard the guidelines stipulated under the Rome I Regulation and Brussels I Regulation. Since UK is a member of the European Union, it is not possible for UK to disregard both Rome I and Brussels I Regulation. For this reason, it is expected that the process of enacting the Defamation Act 2013 will contribute to very little change or no significant improvements to the existing law. Based on a legal philosophical standpoint, the expected change in the requirement for all business organizations to show substantial financial harm including the use of a single publication rule is significant. However, evidences shown in the arguments presented in this study strongly suggest that the implementation of Defamation Act 2013 does not create major improvements when it comes to the law(s) on freedom of expression. Specifically the English law does not only give much importance to freedom of media and freedom of speech. In relation to freedom of speech, Defamation Act 2013 should have clearly stated that a responsible subsequent publication or tweets will not be subjected for legal penalty or legal redress32. Likewise, renaming the justification of truth should always be based on a fair-labelling perspective. However, doing so will not necessarily contribute to a significant improvement as substantially, the existing law is still the same33. References Armstrong N., “United Kingdom: Defamation Act 2013 Update: Website Operators” (2013, September 23). < http://www.mondaq.com/x/264406/Libel+Defamation/Defamation+Act+2013> accessed 31 October 2013 Attle G., “Court decisions discourage "libel tourism". Mills & Reeve LLP” (2013, October 17) accessed 31 October 2013 Barendt E., What is the point of libel law? (1999) 52 Current Legal Problems 110-125. Cosgrave J., “Saudi Prince Sues Forbes for Undervaluing His Fortune” (2013, June 7) accessed 31 October 2013 Crook T., The UK Media Law Pocketbook. (Routledge 2013) Duodu K., Mattison N. and Forsey, S., “Jump in defamation cases driven by celebrities” (2010, August) accessed 31 October 2013 Europa, “Jurisdiction, recognition and enforcement of judgments in civil and commercial matters (“Brussels I”)” (2011, March 5) accessed 31 October 2013 European Movement, “The Economic Benefits to the UK of EU Membership” (2011, December) accessed 19 November 2013. Fenwick H. and Phillipson G.P., Media Freedom Under the Human Rights Act. (LexisNexis 2006). Haberling W. and Schulz H., “Key changes of the revised Brussels I Regulation” (2013, May) accessed 31 October 2013 Halliday J. and O'Carroll L., “Libel tourism at an end, say lawyers following high court rulings. Judgments throwing out cases by Pavel Karpov and Stanko Subotic will make it harder for foreign claimants to sue” (2013, October 15) accessed 31 October 2013 House of Commons, Culture, Media and Sport Committee, Press standards, privacy and libel: second report of session 2009-10, Vol. 1. (The Stationery Office 2010}. Hyde M.J., Perfection: Coming to Terms with Being Human. (Baylor University Press 2010). legislation.gov, “Defamation Act 2013” (2013a) accessed 31 October 2013 legislation.gov, “Summary of the Defamation Act 2013” (2013b) accessed 31 October 2013 Lipton S.T., “The New Defamation Act: Game-Changer or Red Herring?” (2013, June 25) accessed 31 October 2013 Mitchell P., The Nature of Responsible Journalism (2011) 3 Journal of Media Law 19-28. Official Journal of the European Union, “REGULATION (EC) No 593/2008 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 June 2008 on the law applicable to contractual obligations (Rome I)” (2008, June 17) accessed 31 October 2013 Savin A, EU Internet Law. (Edward Elgar Publishing Ltd 2013). Vick D.W. and Macpherson L., An Opportunity Lost: The United Kingdom's Failed Reform of Defamation Law. (1997). 49 Federal Communications Law Journal 621. Read More