The Defamation Act 2013: a free speech retrospective

摘要

This article attempted to gauge whether the 2013 Act delivers on the promises of redressing the balance between speech and reputation, primarily by levelling the playing field between defamation claimants and defendants. The relative importance of freedom of speech and reputation were examined and the societal interests in both were highlighted as instrumental in finding the right balance in case of conflict. The common law on defamation was unique in several ways: it alone formed a specific interest-shaped tort in order to protect reputation, and furthermore it protected this interest heavily by reversing the burden of proof, and by its nature as a strict liability tort for the most part actionable per se This article argued that there was nothing self-evident about this uniqueness. There is no principled reason for the law to be structured in this way. A comparison of the reasons for protecting speech on the one hand and reputation on the other, would on the contrary suggest that the societal interest in free speech should rank at least equally with the individual interest in reputation. This means that at the very least the clear advantage accorded to reputation by the common law of defamation needed to be rebalanced in favour of free speech. This was indeed one of the stated aims for enacting the Defamation Act 2013.