Defamation Act 2013 - Summary

Why was the Act introduced?

The Defamation Act 2013 was introduced in order to reform the law surrounding defamation and to ensure that a fair balance between the protection of reputations and freedom of expression was being attained. Whilst the previous law sought to protect reputations by preventing derogatory statements from being made about individuals, it hindered‘free speech and protected powerful people from scrutiny.’^[1] It was argued that the law of defamation was being used as a means to silence individuals and that too much restriction was being placed upon the ability to express oneself.^[2] Although many attempts were made by the courts to strike a balance between the two competing interests, as illustrated in Reynolds v Times Newspapers Ltd,^[3] this was often difficult to achieve.^[4] This was made even more problematic by the development of the internet which made it extremely difficult for protection to be afforded against online defamation. This led to the introduction of the Draft Defamation Bill in March 2011 which contained provisions to ‘reform the law to strike the right balance between protection of freedom of speech and protection of reputation’^[5] which subsequently resulted in the enactment of the Act.

Aims of the Act

The aim of the Act was to redress the imbalance that existed between the protection of reputations against defamation and freedom of speech. It was thought that the Act would remove the complexities that existed with online defamation by making it easier for defamation law to be enforced online, whilst at the same time not placing too much restriction on one’s freedom of speech. The Act thus aimed to provide a more balanced and fair legal environment that would seek to protect both competing interests^[6] by codifying existing common law principles and making it clearer when a defamation action can be established. Codification is thereby said to ‘clarify and consolidate the current common law to give it more certainty and make it more accessible.’^[7]

Changes to the Law

Section 1 of the Act introduces a ‘serious harm’ test for all defamation claims. Under this new test, a statement will not be considered defamatory unless it can be shown that its publication would cause, or be likely to cause, serious harm to the reputation of the individual. Whilst this provision seeks to ensure that only the most serious of statements are considered defamatory, it will need to be considered what is meant by ‘serious harm’ which could create some ambiguity.^[8]Still, this section of the Act is likely to ‘deter applicants from raising frivolous defamation actions.’^[9]

Section 2 of the Act repeals section 5 of the Defamation Act 1952 by abolishing the common law defence of justification and introducing a defence of ‘substantial truth.’ If a defendant can demonstrate that the statement in which they have made is ‘substantially true’ then they will be capable of relying on this defence. This section seeks to ensure that protection is also being provided to the freedom of speech by allowing statements of truth to be made.

Section 3 of the Act repeals section 6 of the Defamation Act 1952 by abolishing the common law defence of fair comment and providing a defence of ‘honest opinion.’ Thus, if the defendant can show that the statement made was an honestly held opinion then this section can be relied upon.

Section 4 abolishes the common law defence created in the Reynolds case which seemed to provide a new immunity for the media^[10]and introduces a statutory public interest defence. This section allows for statements to be made that are said to be a matter of public interest provided that the maker of the statement believed this to be the case. It has been argued that this section reduces flexibility and will be likely to create additional litigation,^[11] though it seems as though the section just puts the Reynolds defence on a statutory footing.

The Act appears to have codified existing common law rules and principles, thereby making it easier to determine when a defamation action is capable of taking effect. This is supposed to provide the courts with the ability to strike a balance between defamation and freedom of speech so that both interests can receive adequate protection.

Terrorism Act 2006

Why was the Act introduced?

The Terrorism Act 2006 was introduced as a result of the London Bombings that took place in July 2005. The Act was considered to be a necessary response to the ‘extremism that motivated British citizens to engage in such horrific violence.’^[12] It was apparent that something needed to be done to prevent future terrorist acts from occurring which and so it was deemed appropriate for the 2006 Act to be rushed through Parliament. It was said that the Act was simply a panic reaction to the London bombings which was not carefully thought through, resulting in a great deal of human rights conflictions.^[13] It is evident that the Act was introduced primarily as a result of the London bombings, yet this was thought to be the necessary approach to take to prevent further acts of terrorism from being conducted.

Aims of the Act

The Act aimed to include more ‘socially sensitive measures to address the prevention and restriction of terror activities’^[14] dealing primarily with preparatory acts of terrorism, training associated with terrorism and acts which encourage terrorism.^[15] The provisions contained within the Act represent a new step forward in the UK’s ability to criminalise political action as well as any support for such action.^[16] This was a welcoming development in the fight against terror as it ‘broadened the basis for proscribing organisations to include those that promote or encourage terrorism.’^[17]

Changes to the Law

Part 1 of the Act created a number of new offences that were all intended to help the police prevent and tackle terrorism. Section 1 of the Act makes it an offence to publish a statement or cause another to publish a statement that ‘intends or is reckless as to whether members of the public will be directly or indirectly encouraged or induced to commit, prepare or instigate acts of terrorism.’ This section of the Act appears to undermine the right to ‘freedom of expression’ that is contained within Article 10 of the European Convention on Human Rights 1951, as incorporated by the Human Rights Act 1998. However, this is considered necessary in the interests of national security.

Still, the scope of this section appears to catch those individuals seeking to achieve political freedom as opposed to being a terrorist.^[18] In applying this section, however, the courts will be required to consider whether it is proportionate in pursuing a legitimate aim as identified in Piermont v France.^[19] Here, it was held that; ‘a fair balance was not struck between, on the one hand, the public interest requiring the prevention of disorder and the upholding of territorial integrity and, on the other, the applicants freedom of expression.’^[20] The courts will,, thus be required to strike a balance between the two competing interests and consider whether the enforcement of section 1 is necessary for the protection of national security.

Section 2 of the Act makes it an offence to disseminate any publication that would be likely to encourage terrorism, whilst sections 5 and 6 make the preparation of terrorism or terrorist training a criminal offence as exemplified in R v Gul.^[21] The Act has essentially ‘made the glorification of terrorism a criminal offence’^[22] and does not tend to focus on the issue of intent. Whether this makes the UK a safer place is arguable, though it has certainly extended previous counter-terrorism legislation and provided UK law enforcement agencies with greater powers to counter the threat of terrorism.^[23] The Act amends the Terrorism Act 2000 by making various changes to the pre-existing legislative provisions, whilst also extending the powers available to the Secretary of State with regards to proscription and extending police investigatory powers.^[24]

Since the Act was introduced the Crown Prosecution Service have prosecuted various offences under the Act ranging from preparing for terrorism (section 5), training for terrorism (section 6), dissemination of terrorist publications (section 2), possessing information relating to terrorism such as possessing manuals for the creation of explosives (sections 57 and 58) and fundraising for terrorism (sections 15-17).^[25] For example in R v Iqbal (Khuram Shazad)^[26] the defendant was charged with the dissemination of terrorist publications contrary to section 2 and in R v Dart^[27] the defendant was found guilty for engaging in the preparation of terrorism.

Part 2 of the Act also contains miscellaneous provisions to extend the powers of UK enforcement agencies even further. It has been said that one of the most notable changes that were made under this Part of the Act was the extension of police powers to detain terrorist suspects. Such detention can now take place for a period of seven days unless a shorter period (or longer period up to a maximum of 14 days) is deemed to be appropriate by a judicial authority.^[28] The provisions contained within the Act do appear rather extreme, yet this is what was considered necessary in response to the London bombings in 2005 and to combat any further acts of terrorism.

Bibliography

Text Books

Brian Martin. Defamation Law and Free Speech, (London: Freedom Press, 1996)

Council of Europe Directorate of Human Rights. Case Law Concerning Article 10 of the European Convention on Human Rights, Volume 88, (Council of Europe, 2001)

Great Britain. Terrorism Act 2006: Chapter 11, explanatory notes (The Stationary Office, 2006)

Imran Awan. 'The Dangers of Silencing Dissent' (2008) 158 NLJ 623, 624

Jean-Claude Paye. Global War on Liberty (Telos-Press Publishing, 2007)

Kent Roach. The 9/11 Effect: Comparative Counter-Terrorism, (Cambridge University Press, 2011)

Richard Stone. Textbook on Civil Liberties and Human Rights (8th edn, OUP Oxford 2010)

Journal Articles

Alsion Young. 'Draft Defamation Bill – a Missed Opportunity?' (2011) UK Constitutional Law Group, accessed 22 February 2016

Clive Walker. ‘Clamping down on Terrorism in the United Kingdom’ (2006) 4 JICJ 5, 1137

Crown Prosecution Service. 'The Counter-Terrorism Division of the Crown Prosecution Service (CPS) accessed 22 February 2016

Jenny Afia and Phil Hartley. 'Tipping the Balance' (2011) 161 NLJ 376, Issue 7457, 161

Justice. 'Draft Defamation Bill' (2011) accessed 21 February 2016

Keith Schilling. 'Book Review: Duncan and Neill on Defamation' (201) 7407 NLJ 356, 160

Kristen Boon. Aziz Z Huq and Douglas C Lovelace. European Responses to Terrorist Radicalization (Oxford University Press, 2011)

Lee H Leigh. 'The Terrorism Act 2006 - A Brief Analysis' (2006) 170 JPN 20, 364

Ministry of Justice. 'Draft Defamation Bill: Summary of Responses to Consultation' (2011) accessed 22 February 2016

Paul J Buchanan. ‘Terrorists – and Freedom Fighters?’ (2004) AntiWar, accessed 21 February 2016

UKREN. ‘Anti-Terrorism and Racism: The Impact of EU and UK Policy on Black and Minority Ethnic Communities’ (2007), UK Race & Europe, accessed 22 February 2016

Legislation

Defamation Act 1952

Defamation Act 2013

European Convention on Human Rights 1951

Human Rights Act 1998

Terrorism Act 2000

Terrorism Act 2006

Case Law

Piermont v France (15773/89), (27 April, 1995)

Reynolds v Times Newspapers Ltd [2001] 2 AC 127

R v Dart [2014] EWCA Crim 2158

R v Gul [2013[ UKSC 64

R v Iqbal (Khuram Shazad) [2014] EWCA Crim 2650

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^[1] Brian Martin. Defamation Law and Free Speech, (London: Freedom Press, 1996) 6

^[2] Richard Stone. Textbook on Civil Liberties and Human Rights (8th edn, OUP Oxford 2010) 310

^[3] [2001] 2 AC 127

^[4] Richard Stone. Textbook on Civil Liberties and Human Rights (8th edn, OUP Oxford 2010) 310

^[5] Justice. 'Draft Defamation Bill' (2011) accessed 21 February 2016

^[6] Ibid

^[7] Jenny Afia and Phil Hartley. 'Tipping the Balance' (2011) 161 NLJ 376, Issue 7457, 161

^[8] Ministry of Justice. 'Draft Defamation Bill: Summary of Responses to Consultation' (2011) accessed 22 February 2016

^[9] Alsion Young. 'Draft Defamation Bill – a Missed Opportunity?' (2011) UK Constitutional Law Group, accessed 22 February 2016

^[10] Keith Schilling. 'Book Review: Duncan and Neill on Defamation' (201) 7407 NLJ 356, 160

^[11] Supra, n. 22, p. 5.

^[12] Kent Roach. The 9/11 Effect: Comparative Counter-Terrorism, (Cambridge University Press, 2011) 298

^[13] Clive Walker. ‘Clamping down on Terrorism in the United Kingdom’ (2006) 4 JICJ 5, 1137

^[14] UKREN. ‘Anti-Terrorism and Racism: The Impact of EU and UK Policy on Black and Minority Ethnic Communities’ (2007), UK Race & Europe, accessed 22 February 2016

^[15] Jean-Claude Paye. Global War on Liberty (Telos-Press Publishing, 2007) 91

^[16] Ibid

^[17] Kristen Boon. Aziz Z Huq and Douglas C Lovelace. European Responses to Terrorist Radicalization (Oxford University Press, 2011) 73

^[18] Paul J Buchanan. ‘Terrorists – and Freedom Fighters?’ (2004) AntiWar, accessed 21 February 2016

^[19] (15773/89), (27 April, 1995)

^[20] Council of Europe Directorate of Human Rights. Case Law Concerning Article 10 of the European Convention on Human Rights, Volume 88, (Council of Europe, 2001) 49

^[21] [2013[ UKSC 64

^[22] Imran Awan. 'The Dangers of Silencing Dissent' (2008) 158 NLJ 623, 624

^[23] Great Britain. Terrorism Act 2006: Chapter 11, explanatory notes (The Stationary Office, 2006) 6

^[24] Ibid

^[25] Crown Prosecution Service. 'The Counter-Terrorism Division of the Crown Prosecution Service (CPS) accessed 22 February 2016

^[26] [2014] EWCA Crim 2650

^[27] [2014] EWCA Crim 2158

^[28] Lee H Leigh. 'The Terrorism Act 2006 - A Brief Analysis' (2006) 170 JPN 20, 364