APPENDICES
is applicable where i) the statement was a statement of opinion, ii) the statement indicated, either generally or specifically, the basis of the opinion, and iii) an honest person could have held the opinion on the basis of any fact which existed at the time the statement was published or anything asserted to be a fact in a privileged statement published before the statement complained of.321 Clause 3(6) contemplates the scenario where the defendant is not the author of the statement (i.e. the defendant is the newspaper title, and the statement of opinion is written by a particular journalist), and provides that the defence is not available if the defendant knew or ought to have known the author did not hold the opinion that the statement was based on the relevant facts. There is no requirement for the opinion to be held on a matter of public interest.
¶3.190 Clause 4 abolishes the common law defence known as Reynolds privilege and sets out
a defence of "responsible publication on matters of public interest" which is intended to broadly reflect the current law. The defence applies to statements of fact and opinion and has two components; namely that the statement complained of was or formed part of a statement on a matter of public interest, and that the defendant acted responsibly in publishing the statement. Clause 4(2) sets out the matters to which the court may have regard in determining whether the defendant acted responsibly. These factors, which are illustrative and not exhaustive, broadly reflect the current case law and include a) the nature of the publication and its context, b) the seriousness of the imputation conveyed by the statement, c) the relevance of the imputation conveyed by the statement to the matter of public interest concerned, d) the importance of the matter of public interest concerned, e) the information the defendant had before publishing the statement and what the defendant knew about the reliability of that information, f) whether the defendant sought the claimant's views on the statement before publishing it and whether an account of any views the claimant expressed was published with the statement, g) whether the defendant took any other steps to verify the truth of the imputation conveyed by the statement, h) the timing of the statement's publication, and i) the tone of the statement. Clauses 4(3) and (4) reproduce the common law doctrine of "reportage", namely where allegations are reported neutrally rather than adopted by the newspaper no verification of the truth is required.
¶3.191 Clause 6 provides for a new defence of qualified privilege relating to peer-reviewed material
in scientific or academic journals. Clause 7 amends the Defamation Act 1996 which contains defences of absolute and qualified privilege to extend the circumstances in which such defences can be used.
¶3.192 Clause 8 sets out a single publication rule, which has the effect that the one year limitation
period starts to run from the date of the first publication of the material to the public or section of the public. This will represent a substantive change to the law which previously had a "multiple publication" rule, namely that each publication of defamatory material gives rise to a separate cause of action subject to its own limitation period. The single publication rule bites provided that any subsequent publication is the same or substantially the same publication, and provided that the publication is not materially different from the manner of the first publication.322
¶3.193 The Bill also contains some provisions targeted at new media and in particular the internet.
1903Clause 5 creates a new defence for operators of websites where a claim for defamation is brought in respect of a statement posted on the website if the operator did not post the
¶Appendix 4 | Legal Materials
statement. The defence will not be available however if the claimant could not identify the person who posted the statement, the operator was given notice of the complaint and failed to respond to that notice in accordance with the provisions to be set out in regulations to be made by the Secretary of State. The details of this clause, including what needs to be included in the notice and the steps required of the website operator are to be set out in regulations, and this gives rise to some uncertainty as to how this part of the new regime may operate.
¶3.194 Two clauses in the Bill seek to address practical considerations and costs concerns that have
arisen in the context of defamation claims, namely the cost of jury trials and the volume of defamation cases issued in the courts of England and Wales where there are tenuous links to this jurisdiction. Clause 11 removes the right to trial by jury and any presumption in favour of a jury trial with the effect that defamation cases will be tried by a judge unless the court orders otherwise. The other clause of significance is clause 9 which seeks to address the problem of 'libel tourism' and sets a relatively high threshold for parties seeking to bring a claim against a defendant not domiciled in the UK, an EU member state or state which is party to the Lugano Convention: namely that the courts do not have jurisdiction unless it can be shown that England and Wales is clearly the most appropriate place to bring an action.
- Regulatory law – legal framework relating to the
¶Information Commissioner
¶Legislative background to the protection of personal data 4.1 A right to privacy, as distinct from specific protection of personal data, has been explicitly
recognised at an international level since 1948 when the Universal Declaration of Human Rights incorporated in Article 12 a right to be protected against arbitrary or unlawful interference with privacy. Article 12 was reproduced in Article 17 of the International Covenant on Civil and Political Rights in 1966. Subsequently, the Organisation for Economic Co-operation and Development recognised the inherent link between protection of privacy and restrictions on processing personal information, and adopted guidelines seeking to restrain the cross border flow of information.323
¶4.2 The Convention for the Protection of Individuals with regard to Automatic Processing of
Personal Data of the Council of Europe (the Convention) was opened for signature in 1981. This was the first legally binding international instrument with the specific objective of data protection. Its purpose was:
"to secure [...] for every individual [...] respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data."
¶4.3 Chapter II of the Convention sets out the basic principles of data protection, rights of data
1904subjects and requires parties to the Convention to take steps to ensure that domestic law gives effect to the basic principles set out in the Convention.