The Defamation Act: a balancing act

The law surrounding defamation has always had a unique standing amongst civil proceedings in England and Wales. Aside from the public interest that a high-profile defamation case might arouse and the ‘libel tourism’ that results as celebrities from all over the world bring actions in our courts, the offence is also one of only a few civil actions that contain the presumption of a jury trial as opposed to judge-led proceedings. That, along with many other measures, is set to change, however, when the new Defamation Act 2013 (the Act) comes into force this year.

The Act received Royal Assent on 25 April 2013 and will come into force later in 2013. In today’s fast-moving, internet-led global market, the following new provisions will be key for any business.

Claimants must prove serious harm: in order for a defamation action to succeed, a statement will have to have caused, or be likely to cause, ‘serious harm‘ to the reputation of the claimant. Further, for corporate claimants, ‘serious financial loss’, either actual or likely, must be shown for the harm to be considered serious. This significantly limits the scope of the law from its current position and means that companies will not necessarily be able to use the threat of proceedings to ensure critics do not speak out…

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