The Defamation Law - UK Reform

In 1995 the Lord Chancellor's Department published a draft Defamation bill with a short commentary explaining how the reforms would work. The bill was published ahead of its introduction to Parliament to allow a period of consultation to take place on the details of drafting and on the clarity of structure and presentation. The obvious advantage to this is that Bills will be introduced in the best possible form, with the benefit of all the expert scrutiny and constructive practical advice which may be offered.

The consultation period closed at the end of October 1995 and the bill was introduced in the House of Lords on the 8th February 1996. The draft section 1 and the newly published section 1 are both reproduced below along with comments on the original draft.

The Act received its Royal Assent on the 4th July 1996 and came into force on the 4th September. Section 1 is reproduced below. The full text of the Act is available on the HMSO Internet site.

View section 1 of the draft bill - entitled Responsibility for publication .
Reproduced by permission of HMSO .

View comments on the draft bill by: David L Shaw MP

View comments on the draft bill by: Charles Gray QC

View section 1 of HL Bill 42 Responsibility for publication .
Reproduced by permission of HMSO .

View section 1 of the Defamation Act 1996 - Responsibility for Publication
Reproduced by permission of HMSO .

Full text of the Defamation Act 1996

---

This file contains Crown and Parliamentary Copyright material which is reproduced under licence from the Controller of HMSO .

Permitted Uses - End users may access the material and download it onto electronic, magnetic, optical or similar storage media provided that such activities are for private research, study or in-house use only.

Restricted Uses . - End-users must not copy, distribute, sell or publish the Material.

DRAFT OF A BILL INTITULED

An Act to amend the law of defamation and to amend the law of limitation with respect to actions for defamation and malicious falsehood .

Responsibility for publication

1.--(1) In proceedings for defamation it is a defence for a person to show that he was not primarily responsible for the publication of the statement complained of and that he did not know, and having taken all reasonable care had no reason to suspect, that his acts involved or contributed to the publication of a statement defamatory of the plaintiff.

(2) For the purposes of this section the persons primarily responsible for the publication of a defamatory statement are the author, the editor and the publisher.

For this purpose--

'author' does not include a person who does not intend that his statement be published;

'editor' means any person having editorial or equivalent responsibility for the content of the statement or the decision to publish it; and

'publisher' means any person whose business is issuing material to the public, or a section of the public, and who publishes the statement in the course of that business.

(3) Employees or agents of a person primarily responsible for the publication of a defamatory statement are themselves primarily responsible if or to the extent that they are in fact responsible for the content of the statement or the decision to publish it, but not otherwise.

(4) The following shall not be regarded for the purposes of this section as pnmarily responsible for the publication of a defamatory statement--

(a) in the case of a defamatory statement contained in printed material, a person involved only in printing, producing, distributing or selling that in which the statement is contained;

(b) in the case of a defamatory statement contained in a film or sound recording, a person involved only in processing, making copies of, distributing, exhibiting or selling that in which the statement is contained;

(c) in the case of a defamatory statement published by electronic means, a person involved only--

(i) in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or

(ii) in operating any equipment by means of which the statement is retrieved, copied or distributed;

(d) the broadcaster of an unrecorded defamatory statement made by a person for whose acts the broadcaster is not responsible;

(e) the operator of a communications system by means of which a defamatory statement is transmitted, or made available, by a person for whose acts the operator is not responsible.

The above provisions of this subsection are not an exhaustive statement of the persons who are or are not primarily responsible for the publication of a defamatory statement; but in cases to which the provisions do not apply the court shall have regard to them by way of analogy.

(5) In determining for the purposes of subsection (1) whether a person took all reasonable care, regard shall be had to the extent (if any) to which he is in fact responsible for the content of the statement or the decision to publish it.

(6) In determining for the purposes of subsection (1) whether a person had reason to suspect that his acts involved or contributed to the publication of a statement defamatory of the plaintiff, regard shall be had to whether the 25 nature or circumstances of the publication, or the previous conduct or character of those primarily responsible, were such as to give cause for suspicion that his acts might involve or contribute to the publication of a defamatory statement.

(7) Subsections (5) and (6) are not an exhaustive statement of the matters to be taken into account for the purposes mentioned.

(8) In this section--

'film' and 'sound recording' have the same meaning as in Part I of the Copyright, Designs and Patents Act 1988; (1988 c.48.)

'plaintiff', in relation to proceedings in Scotland, means pursuer; and 'statement' includes pictures, visual images, gestures and other methods of signifying meaning.

(9) The provisions of this section do not affect any cause of action arising before this section comes into force

View comments on the Draft Bill by: David L Shaw MP