The Defamation Act 2013: what exactly is ‘a body that trades for profit’?

David Acheson

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Abstract

The Defamation Act 2013 (‘the Act’) represents the culmination of a long period of consultation and debate. During this period, concerns were raised by numerous parties about the use of libel laws by large corporations seeking to stifle criticism of their activities. In fact, the 2009 report produced by the Libel Reform Campaign, which was particularly influential in the early stages of this debate, recommended completely removing the right to sue in defamation from large- and medium-sized companies.

Initially, the Government of the time did not regard it as necessary to single out corporate bodies for different treatment, and therefore the Defamation Bill as first put before Parliament contained no provisions relating specifically to corporate claimants. Late in the Parliamentary process, however, an amendment targeting the issue was agreed to, and as a result section 1 of the final Act reads as follows:

(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.

As perhaps the most important provision of the Act, section 1 has already attracted significant scholarly attention, and much critical comment. However, the scope of subsection (2) – that is, which potential claimants the requirement to prove ‘serious financial loss’ will apply to – has remained relatively unexplored. The first case to examine the nature of the requirement introduced by section 1(2) throws little light on its scope: in Brett Wilson LLP v Persons Unknown, Warby J merely stated that the claimant was ‘clearly a body that trades for profit’. The purpose of this article is to clarify the phrase ‘body that trades for profit’, and to predict how the courts are likely to interpret it. Four particular types of non-human claimant are considered, namely charities, housing associations, trade associations, and holding corporations.
Original languageEnglish
Pages (from-to)113-119
JournalCommunications Law
Volume20
Issue number4
Publication statusPublished - 18 Dec 2015

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