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Defamation expert: New '1 year after publication' rule means EASY LIFE for UK libel judges

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Media law expert Ian Birdsey of Pinsent Masons, the law firm behind Out-Law.com, said that newspaper and magazine publishers, as well as businesses that provide solutions for digitally archiving content, would welcome the introduction of a "single publication rule" as part of a new Defamation Act which came into force on 1 January.

However, Birdsey said that UK courts may first have to deal with a wave of satellite litigation around how the new rules work before the number of defamation cases they have to deal with eventually reduces.

"Defamation claims must be brought within a year of the date allegedly libellous material is published," Birdsey. "At the moment, however, each time a reader accesses an article online it is considered to be a fresh publication.

"This means that claims can be brought in relation to content that was originally published much longer than a year before a claim is lodged, presenting a number of challenges to media organisations and other companies involved in digital archiving."

The new Defamation Act introduces a single publication rule which would, generally, set the clock ticking on eligible claims being brought from the date material is first published publicly. If that material is subsequently re-published in its exact form or where it is "substantially the same", the date of original publication would continue to stand for the purposes of the time limit on bringing defamation claims.

"These reforms should restrict the number of claims brought against publishers, although the courts could be busy for a time dealing with satellite issues as parties in dispute seek to understand to what extent re-purposed content, such as summaries of previous material published, can be considered to be 'substantially the same' as that which was originally published," Birdsey said.

"Those who claim to be defamed but who are time-barred from bringing claims on an original publication will be keen to argue that re-published statements that do not exactly match that which was originally published count as a fresh publication, which would allow them to bring a claim for defamation against the publisher of that material within a year of the date of that fresh publication," he added.

Birdsey said that publishers would also welcome another change that came into force under the new defamation law regime on 1 January.

The new Act enables individuals or businesses to lodge claims, but only where they can show that defamation of them has caused, or is likely to cause, serious harm to their reputation. Businesses can only be said to have suffered 'serious harm' if they can demonstrate that they have experienced, or are likely to experience "serious financial loss" as a result of defamatory comments.

"In the main, the new 'serious harm' threshold should help discourage trivial or vexatious claims from being brought before the courts, or at the very least ensure they are eliminated at an early stage in proceedings," Birdsey said.

Under the new Act, website operators can be held liable for comments published by users of their sites under certain circumstances. However, regulations which came into force on 1 January set out a process website operators can follow to help people who are allegedly defamed hold commentators to account and avoid being held liable themselves.

Birdsey said that those provisions showed that Parliamentarians were trying to ensure that the new laws could account for the digital age and the fluid nature of websites.

The expert said, though, that media companies would not welcome the introduction of new rules under the Defamation Act that would give judges the power to force them to publish summaries of cases they have lost.

Under the Act, judges could order publishers to negotiate on the wording of the summaries, as well as the time, manner, form and place of publication, with the parties they were in dispute with. Judges could set the wording themselves in cases where there is not agreement and they would also be able to give directions about the prominence of those summaries in those circumstances.

"It has become common practice for most newspapers and magazines to publish corrections and clarifications to previous stories where appropriate," Birdsey said. "However, these provisions could see the control editors have over how and where they appear in their print publications or online platforms being taken away from them."

Copyright © 2013, Out-Law.com

Out-Law.com is part of international law firm Pinsent Masons.

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