The Defamation Act 2013 is now in force. In a press release the government claims it “reverses the chilling effect on freedom of expression current libel law has allowed, and the prevention of legitimate debate we have seen in the past”.
In response, the Inforrm blog has asked:
Does the Act “reverse the chilling effect on freedom of expression of current libel law” or is it damp squib which will make defamation cases more complex?
It’s a big question. It might be more realistic to hope the unwarranted deterrence of legitimate expression is reduced. The answer would need to be informed by a good deal more data than is currently available, to compare defamation related activity pre and post reform. The court records only provide very limited information about the way in which publishing activity is detrimentally affected by defamation costs and procedure.
To understand perceived chilling effects (most invidious when protected expression is deterred for fear of legal sanction and associated costs – see Schauer 1978, PDF) it is necessary to look at claims that are discontinued or settled before a hearing, complaints that are settled before ever reaching court and beyond that threats of legal action that never materialise (see Barendt et al 1997).
Further still, there is the anticipated fear of legal action and costs based on past experience, or the experience of others. Additionally, behavioural change as a result of the new Act and associated procedure might not be immediately obvious (if claims involving causes of action accrued prior to commencement of the Act can still be brought under the old law till late 2014).
It would be beneficial to researchers and policymakers if more anonymised data were made available (by the judiciary/MoJ, media companies and defamation specialist firms) about claims, complaints settled before they reach court, and abandoned threats [more on this here].
It’s encouraging to see the Master of the Rolls emphasise the importance of Alternative Dispute Resolution [PDF]. I’ve heard it suggested that claimants are often far more concerned about an apology and correction than damages (though costs add up fast once litigation is underway); if so, it would make sense to find alternative avenues for resolving disputes more quickly and cheaply.
This would both help protect publishers from illegitimate threats, as well as providing suitable redress for legitimate claimants. Resolving complaints in fair and effective ways through affordable and sensibly designed alternative routes does not necessarily have to prevent access to justice – for both defendants and claimants.