The document summarizes key provisions and changes in the Defamation Act, and provides recommendations for businesses. It notes that the Act aims to rebalance free speech protections, and outlines defenses for opinions, public interest matters, and website operators. It advises businesses to assess claims thoroughly before initiating them, pursue costs protection, and utilize the website operator's defense as well as other causes of action and reputation management techniques.

1. The Defamation Act - what businesses need to know
In house lawyers forum – autumn 2013

2. 1. significant provisions and changes
2. issues when you are defendant
3. issues when you are claimant
4. recommendations

3. • online publication
• British Chiropractic Association v Simon
Singh
• index on censorship
• does the Act address these concerns?

4. • a statement is not defamatory unless its
publication has caused or is likely to
cause serious harm to the reputation of
the claimant
• harm to the reputation of a body that
trades for profit is not ‘serious harm’
unless it has caused or is likely to cause
the body serious financial loss

5. • honest opinion
• publication on matter of public interest
• publication in a scientific journal
• qualified privilege
• limitation (single publication rule)

6. • operators of websites have a defence if
it was not the operator who posted the
statement
• defeated if the claimant shows that
– it was not possible for them to identify
the person who posted the statement
– the claimant gave the operator a notice
of complaint in relation to the statement
and they failed to respond

7. • general protection for intermediaries
(persons who are not the author, editor
or publisher of the statement)
• separately – availability of third party
orders (s.13)

8. • Act intended to rebalance law in favour
of freedom of speech
• but most helpful for certain types of
defendant e.g. journalist, scientists,
website operators
• websites may still operate notice and
take down procedure

9. • clearly utilise defence gateways
– opinion
– public interest
• more uncertainty in law for now

10. • claims will need to be more thoroughly
assessed before they are initiated
• need to pursue smaller bodies – costs
risks
• take advantage of website operator’s
defence regulations

11. • for public bodies – note application of
Carmarthenshire case
• use of
– other causes of action e.g. harassment,
unfair advertising laws
– technical means of reputation
management

12. Get in touch if you have any questions or
would like further information.
t +(0)121 237 3992
e richard.nicholas@brownejacobson.com