Overview

Defamation laws aim to strike a balance between freedom of expression and

the right to reputation
o But this is imperfect
Having regard to the nature and substance of the attack to Cs reputation, is it
justifiable to interfere with the publishers right to the freedom of expression?
o But instead of asking that question, defamation laws here have become
unnecessarily complicated
o Common law evolves in response to the small proportion of cases that
come before the court
Cases often managed and decided by judges who have been
schooled in the archaic (?) of the jurisdiction
Law reformed periodically by statutes that respond to a
perception that the common law requires reform
o Reality thus is that the complexity of the law can be exploited by both
sides to a defamation suit
Publishers use threat of costly and time-consuming litigation to
deter potential claimants
Potential claimants may also use the same grounds to deter
publishers from exposing their affairs
Costs frequently exceed potential damages awarded
Matters of real consequence are almost always an issue in defamation
proceedings juridical stage upon which important questions of public policy
in a civilised society are played out
o How do you vindicate a reputation when its damaged?
o How do you encourage freedom of expression when it advances the
public interest?
o How do you curb abuses of that freedom, particularly by the press?

Key reforms in the Defamation Act 2013

S1: imposes threshold of seriousness on defamation actions

o No longer allowed to proceed unless C has suffered/is likely to suffer
serious financial loss or serious harm to reputation
o Might be more symbolic than practical courts have already
developed principles and procedures to mitigate
o But nonetheless will serve to deter and fortify courts
Most important (in his view) likely to prove to be the new defence of honest
opinion
o Replaces old defence of fair comment
o Much more liberal than old defence
o Capable of protecting honest opinions on any subject matter vs
assertions of fact
o Protects expression of opinion that couldve been held/expressed by an
honest person even on the basis of facts not known to the publisher at
the time of publication and upon which the opinion wasnt based
o Quite a radical liberalisation of the law

Abolishes various other defences e.g. common law defence of

justification/truth, and the Reynolds defence (for responsible journalism on
matters of public concern)
o Replaces these with statutory codifications but likely to give rise to
a number of abusrdities?
Also a number of internet-friendly features
o Courts no longer have jurisdiction to hear and determine defamation
actions against secondary publishers e.g. news agents, book stores,
internet content hosts, service providers
New defence for operators of websites in cases involving allegedly defamatory
statements posted by others online
o Operators in such cases e.g. news websites or other online forums will
generally now have an immunity for suit where they comply with title
prescribed regulations and act as a point of liaison between the
anonymous posters and the aggrieved parties
A single publication law has also been introduced (?)
o Aggrieved persons will generally only have 1 year from the time when
the offending statement first became available to bring a claim
cannot bring a claim for statements which have been made long ago
and are still available via online archives
o Will continue even when new facts emerge that have the effect of
changing the character of the statement
Other liberalisations
o Traditional categories of absolute and qualified privilege have been
expanded