One of the difficulties cited during the debate is that editors need to make decisions very quickly as to whether to publish a particular item and that their willingness to publish "hard stories" might be inhibited if the legal consequences of doing so were unclear because they could not be confident of being able to rely on a defence (including absolute or qualified privilege) available under English law.
-----Original Message-----
From: James Lee
Sent: 09 June 2008 23:48
Subject: RE: ODG : Question about defamation and conflict of laws
Dear Lewis (and colleagues),
Whilst publication in various countries does give rise to the jurisdictional issues which you mention, a more significant reason behind the exclusion of defamation from the scope of the 1995 Act was the concern over the balance struck between freedom of expression and the protection of reputation in different jurisdictions, particularly the potential exposure of the British media to libel claims under other more claimant-friendly laws (and, conversely, though less important as a reason for legislating, the protection of reputations under laws which are more defendant-friendly). (The issues have perhaps become more significant given the House of Lords’ recent development of the qualified privilege defence and its evolution into a defence of responsible journalism: see Reynolds v Times Newspapers Ltd [2001] 2 AC 127 and Jameel v Wall Street Journal Europe [2006] UKHL 44.)
Helpfully, several leading commentators noted the Act at the time, and so any consideration of the reforms could start with the following:
A. Briggs, ‘Choice of Law in Tort and Delict’ [1995] LMCLQ 519
C.G.J. Morse, ‘Torts in Private International Law: A New Statutory Framework’ (1996) 45 ICLQ 888
P. Carter, ‘The Private International Law (Miscellaneous Provisions) Act 1995’ (1996) 112 LQR 190
The key point is well expressed by Morse at 891:
“The principal motivation for the inclusion of section 13 (which did not appear in the original bill) appears to have been a fear that freedom of expression, and particularly freedom of expression by the press, would be prejudiced by application of the new choice of law rules. This was allegedly because of the abolition of the requirement of the common law that the tort had to be actionable by the law of the forum. Under the new choice of law rules, so the argument appears to have gone, the press would be exposed to liabilities for defamation, etc., under a foreign law when, say, the statement of which the plaintiff complained would attract some form of privilege or other defence under English law.”
I have omitted footnote references, but Morse notes at fn 27 that there was a campaign by the British print media against the original Part of the Bill, referring to the leading article in the Evening Standard at the time: “opining, in words not untinged with hysteria, ‘that the most obvious and dangerous implication of the Bill is that it will open the floodgates to highly dubious, speculative libel actions against British newspapers from abroad ... Parliament must stamp hard on this pointless, wasteful and deeply dangerous Bill.’ ... Rarely, if ever before, can a change in the rules of English private international law have given rise to such a furore!”
See also recently for an allusion to the perception of English law – Aidan Eardley, “An end to libel tourism?” (2007) 157 New Law Journal 686.
I hope that this helps somewhat.
