New - The Defamation Act

By Jenny Afia, Partner at Schillings.

Put it down to the January blues, but it's hard not to feel depressed by the new Defamation Act, which came into force this week. The prospect of it now being easier for the press to falsely accuse people of wrongdoing seems even sadder than that dried up tangerine at the bottom of last month's Christmas stocking.

The headline-grabbing changes brought in by the Act are not actually the ones of concern.

"Libel tourism" - pursuing defamation claims in this country because our laws are more favourable, rather than because there's a legitimate reason to sue here - will be stamped out. But the judicial wind has been blowing in that direction for several years now anyway. Back in 2010 procedural changes were adopted that went a very long way towards preventing libel tourism.

That was despite a Ministry of Justice Libel Working Group being unable to determine whether the problem was a perceived one, following a well-organised media campaign - or an actual one.

Nor will the requirement to show the article has caused "serious harm" to the victim's reputation make any practical difference. People who have been unfairly attacked don't relish having to sue a newspaper. Any litigation is expensive, time-consuming and stressful. Factor in the risk of publications pursuing grudges against those who fight back and you'd have to be mad to even contemplate taking action unless the issues were sufficiently serious.

Instead, it's the increased opportunities for people seeking to trash rivals' reputations via the press that's of concern.

Such opportunities stem from the extension of the circumstances in which the "privilege" defence will protect the repetition of false claims.

Whereas previously only defamatory claims made in certain circumstances, like in court or Parliament, could be faithfully reported by the press without risk of being sued, there are now many more occasions when false claims can be legitimately repeated, to a much larger audience.

For example, defamatory claims made at a press conference anywhere in the world will now be protected by the enlarged "privilege" defence if repeated by a newspaper. The publication won't have to take any steps to verify whether the claims are true or consider why the speaker is making them.

That's despite how easy it can be to hastily convene a 'press conference'.

Someone wanting to bring down the reputation of, say, a business rival or former school enemy wouldn't even need the press to attend but just to send a round-robin email attaching notes from the event.

Similarly, proceedings at public meetings anywhere in the world can now be reported by the press even if the event is used as an opportunity to broadcast entirely false claims. The same applies to reports of proceedings at general associations worldwide. There are some exceptions to the above but they will be hard to show.

The sheer weight of copy devoted to court cases over the last year shows how the press relishes a public spat - the more personal the better. The new Defamation Act will make such stories more common. That surely spells bad news for anyone with a new year resolution to detox from a diet of false and intrusive claims publicised by those with axes to grind.

By Jenny Afia, Partner at Schillings