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Last week in our Many hats interview we spoke with Steve Kuncewicz, Head of IP and Media at Bermans LLP, who gave us some insight into his daily challenges and work. This week, Steve gives his view on the how the Defamation Act 2013 is reshaping the defamation landscape.
What was the position before the Defamation Act 2013?
Libel lawyers have traditionally taken no small comfort (and secured their mortgages) from the fact that the UK was the ‘libel capital of the world’. We developed that reputation from having particularly claimant-friendly defamation laws and from our courts being willing to hear cases which saw those laws often being brought to bear by individuals based outside the UK but who claimed a reputation here which could be, and was, fiercely protected.
Something had to change, not least because of what was seen as the unfair pressure and ‘chilling effect’ upon investigative (and sometimes less worthy) journalism exerted by the deployment of conditional fee agreements (CFAs) which allowed for uplifts on costs recoverable from the losing party in the event of a claim being successful. The Jackson reforms cut a swathe through CFA arrangements, and many expected the new Defamation Act 2013 (DA 2013) to have a similar effect upon libel and slander claims in the UK when it came into force on 1 January 2014.
Is DA 2013 the end of defamation as we know it?
Does it completely overhaul defamation law for the social media generation?
No. DA 2013 is effectively a ‘re-skinning’ of defamation law that for the most part leaves the nuts and bolts of defamation law unchanged, but which also contains some significant new concepts designed to protect free speech and robust opinion. Here’s a whistle-stop tour.
Section 1 introduces a new requirement of ‘serious harm’ in defamation claims. Now, not only does a statement have to have a negative effect upon a reputation in the minds of the average person in the street or
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