Why was the Act introduced?
The Defamation Act 2013 was introduced in order to reform the law surrounding defamation and to ensure that a fair balance between the protection of reputations and freedom of expression was being attained. Whilst the previous law sought to protect reputations by preventing derogatory statements from being made about individuals, it hindered‘free speech and protected powerful people from scrutiny.’[1] It was argued that the law of defamation was being used as a means to silence individuals and that too much restriction was being placed upon the ability to express oneself.[2] Although many attempts were made by the courts to strike a balance between the two competing interests, as illustrated in Reynolds v Times Newspapers Ltd,[3] this was often difficult to achieve.[4] This was made even more problematic by the development of the internet which made it extremely difficult for protection to be afforded against online defamation. This led to the introduction of the Draft Defamation Bill in March 2011 which contained provisions to ‘reform the law to strike the right balance between protection of freedom of speech and protection of reputation’[5] which subsequently resulted in the enactment of the Act.
Aims of the Act
The aim of the Act was to redress the imbalance that existed between the protection of reputations against defamation and freedom of speech. It was thought that the Act would remove the complexities that existed with online defamation by making it easier for defamation law to be enforced online, whilst at the same time not placing too much restriction on one’s freedom of speech. The Act thus aimed to provide a more balanced and fair legal environment that would seek to protect both competing interests[6] by codifying existing common law principles and making it clearer when a defamation action can be established. Codification is thereby said to ‘clarify and consolidate the current common law to give it more certainty and make it more accessible.’[7]
Changes to the Law
Section 1 of the Act introduces a ‘serious harm’ test for all defamation claims. Under this new test, a statement will not be considered defamatory unless it can be shown that its publication would cause, or be likely to cause, serious harm to the reputation of the individual. Whilst this provision seeks to ensure that only the most serious of statements are considered defamatory, it will need to be considered what is meant by ‘serious harm’ which could create some ambiguity.[8]Still, this section of the Act is likely to ‘deter applicants from raising frivolous defamation actions.’[9]
Section 2 of the Act repeals section 5 of the Defamation Act 1952 by abolishing the common law defence of justification and introducing a defence of ‘substantial truth.’ If a defendant can demonstrate that the statement in which they have made is ‘substantially true’ then they will be capable of relying on this defence. This section seeks to ensure that protection is also being provided to the freedom of speech by allowing statements of truth to be made.
Section 3 of the Act repeals section 6 of the Defamation Act 1952 by abolishing the common law defence of fair comment and providing a defence of ‘honest opinion.’ Thus, if the defendant can show that the statement made was an honestly held opinion then this section can be relied upon.
Section 4 abolishes the common law defence created in the Reynolds case which seemed to provide a new immunity for the media[10]and introduces a statutory public interest defence. This section allows for statements to be made that are said to be a matter of public interest provided that the maker of the statement believed this to be the case. It has been argued that this section reduces flexibility and will be likely to create additional litigation,[11] though it seems as though the section just puts the Reynolds defence on a statutory footing.
The Act appears to have codified existing common law rules and principles, thereby making it easier to determine when a defamation action is capable of taking effect. This is supposed to provide the courts with the ability to strike a balance between defamation and freedom of speech so that both interests can receive adequate protection.
2026 update
The Defamation Act 2013 remains the principal statute governing defamation law in England and Wales and continues to operate largely in the form in which it came into force on 1 January 2014. However, later case law has clarified the operation of some provisions, particularly the requirement in section 1 that a claimant must show that the publication has caused or is likely to cause serious harm to their reputation. Courts have confirmed that this requires evidence of actual or probable harm rather than merely showing that the words complained of had a tendency to damage reputation. The statutory framework of the Act otherwise remains in force without major legislative amendment.
Bibliography
Text Books
Brian Martin. Defamation Law and Free Speech, (London: Freedom Press, 1996)
Council of Europe Directorate of Human Rights. Case Law Concerning Article 10 of the European Convention on Human Rights, Volume 88, (Council of Europe, 2001)
Imran Awan. ‘The Dangers of Silencing Dissent’ (2008) 158 NLJ 623, 624
Richard Stone. Textbook on Civil Liberties and Human Rights (8th edn, OUP Oxford 2010)
Journal Articles
Alsion Young. ‘Draft Defamation Bill – a Missed Opportunity?’ (2011) UK Constitutional Law Group,
Jenny Afia and Phil Hartley. ‘Tipping the Balance’ (2011) 161 NLJ 376, Issue 7457, 161
Justice. ‘Draft Defamation Bill’ (2011)
Keith Schilling. ‘Book Review: Duncan and Neill on Defamation’ (201) 7407 NLJ 356, 160
Ministry of Justice. ‘Draft Defamation Bill: Summary of Responses to Consultation’ (2011)
Legislation
Defamation Act 1952
Defamation Act 2013
European Convention on Human Rights 1951
Case Law
Piermont v France (15773/89), (27 April, 1995)
Reynolds v Times Newspapers Ltd [2001] 2 AC 127
[1] Brian Martin. Defamation Law and Free Speech, (London: Freedom Press, 1996) 6
[2] Richard Stone. Textbook on Civil Liberties and Human Rights (8th edn, OUP Oxford 2010) 310
[3] [2001] 2 AC 127
[4] Richard Stone. Textbook on Civil Liberties and Human Rights (8th edn, OUP Oxford 2010) 310
[5] Justice. ‘Draft Defamation Bill’ (2011)
[6] Ibid
[7] Jenny Afia and Phil Hartley. ‘Tipping the Balance’ (2011) 161 NLJ 376, Issue 7457, 161
[8] Ministry of Justice. ‘Draft Defamation Bill: Summary of Responses to Consultation’ (2011)
[9] Alsion Young. ‘Draft Defamation Bill – a Missed Opportunity?’ (2011) UK Constitutional Law Group,
[10] Keith Schilling. ‘Book Review: Duncan and Neill on Defamation’ (201) 7407 NLJ 356, 160
[11] Supra, n. 22, p. 5.
