Offers of Amends

Defendants may be able to protect themselves by making an offer of amends under the Defamation Act 1996 s. 2. This applies, inter alia, to publications in which the defendant neither knew nor had reason to know that the statements referred to the claimant or was likely to be so understood. The provision requires defendants to offer to print a correction and apology, as are agreed or determined by the court. The effect of the provision is – – Create a formal mechanism for the consensual resolution of defamation disputes, with provision for judicial determination of appropriate compensation in default of agreements between parties.

– Allow a defence to n 'innocent defamer' whose offer of amends is rejected by the person defamed. – Defamation claimants will loose the right to compensation if they reject a valid offer of amends, unless they are able to prove that the publication was culpable in the sense that the defendant knew or had reason to know that the statement both referred to the claimant or was likely to be so understood, and was false and defamatory to the claimant. (g) Innocent Dissemination Defamation Act 1996 s.

1 The object of this provision is to allow a defence to the merely mechanical distribution of defamatory material, if they have no reason to believe that their conduct might contribute to the publication of defamatory material. The defence applies to those, other than the 'author, editor and commercial publisher' of the statement. It covers those involved only in the printing, distributing and selling of printed material, the broadcaster of live programme where there is no 'effective control'.

s4 of the defamation Act 1952 provides a special statutory defence ion cases of 'unintentional defamation' can make an offer of amends. However, this fell into disuse primarily because of the lengths to which the defendant had to go in order to prove that the words were published 'innocently'. s2-4 1996 Act has altered 'unintentional defamation' defence by removing the requirement of non-negligent innocence. Although it retains the basic shape of the 1952 Act, it makes available to any person publishing material, which he did not know was false or defamatory to the claimant.

Significantly, the burden of proving innocence is reversed. Vitzelli v Mudie's Select Library [1900] The defendants allowed people to use a book which, unknown to them, contained a libel on the plaintiff. IN a publication taken by the defendants the publishers had circulated a notice requesting the return of copies of the offending book HoL: The defendants had failed to establish their innocence and were found liable. They had no procedure for checking whether their books contained libels and they had overlooked the publisher's request for the return of the book.

Freedom of Expression and Defamation The right to freedom of expression, by virtue of HRA 98 ECHR s10 (1) provides that everyone has the right to freedom of expression. However, the Convention also recognizes countervailing interests s10 (2). Thus, the courts have to address where to draw the line in balancing these tensions. The presumption appears to be in favour of freedom of expression. HRA 98 s12 (1) and s12(4) is actuated when such tensions appear. In Reynolds, it was conceded that 'the starting point is the freedom of expression…

is the rule and regulation of speech is the exception requiring justification. The justification of any exception can only be justified if it is underpinned by a pressing social need'. It was also said that 'any curtailment must be convincingly established by a compelling countervailing consideration and that the means must be proportionate to the end sought. The liberty to communicate is important but not misinformation. Public interest is not served from dissemination of misinformation. It was also conceded that reputation is a matter of importance affecting the individual and his family.

The Defamation Act 1996 introduced reforms to the law. A 'fast track procedure' enables the courts alone to dispose summarily of cases that are inordinately weak and provide 'summary relieve' for those that are inordinately strong. However, there is a restriction on maximum compensation that can be awarded (>GBP1000). This may limit the practical impact of the fast track procedure. However, this procedure also allows for a declaration of falsity and an order to publish an apology, which is not available to jury accessed damages.