Defamation (Amendment) Act 2026
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Defence in relation to broadcast of live programme | ||
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13. (1) The Principal Act is amended by the insertion of the following section after section 27: | ||
“Live broadcast defence | ||
27A. (1) It shall be a defence (to be known as the ‘live broadcast defence’) to a defamation action that relates to a statement published by a relevant person during the broadcast of a live programme for the broadcaster of the programme to prove that, in advance of and during that broadcast, the broadcaster took reasonable and prudent precautions to prevent the publication by a relevant person of a defamatory statement during the live programme. | ||
(2) The court shall, in determining for the purposes of subsection (1) whether a broadcaster of a live programme took reasonable and prudent precautions, have regard to such matters as the court considers relevant, including the following: | ||
(a) the level of effective control over the relevant person that could reasonably be expected of the broadcaster in those circumstances, including— | ||
(i) the nature of the location from which the live programme was broadcast, | ||
(ii) the nature of the live programme, and | ||
(iii) whether the relevant person was a contributor, or a person other than a contributor, to the live programme; | ||
(b) the overall measures employed by the broadcaster to ensure the taking of reasonable and prudent precautions and risk management in the conception, design and planning of live programmes, including editorial policies, risk assessment, programme production procedures, staff training and guidance and, where appropriate, transmission delays; | ||
(c) the extent to which the broadcaster carried out an appropriate risk assessment, in respect of the risk of a relevant person making a defamatory statement during the live programme, in relation to the programme prior to its broadcast, having regard in particular to— | ||
(i) the type of— | ||
(I) live programme concerned, and | ||
(II) persons envisaged as participants in the live programme, | ||
(ii) the topics to be addressed during the live programme, and | ||
(iii) the public interest in having a live programme on the topic concerned; | ||
(d) where appropriate, having regard to the conclusions of the risk assessment referred to in paragraph (c), whether any appropriate vetting of participants in the live programme was carried out; | ||
(e) the overall management in practice of the live programme concerned, and of its participants, by the broadcaster and in particular by the presenter of the live programme. | ||
(3) For the avoidance of doubt, the live broadcast defence shall not fail by reason only of the live programme concerned having been broadcast with a minimal delay. | ||
(4) In this section— | ||
‘broadcast’, ‘broadcaster’ and ‘programme’ shall each have the same meaning as they have in the Broadcasting Act 2009 ; | ||
‘contributor’ means a participant in a live programme who has been invited by the broadcaster of the live programme to make statements in the course of the programme and who is not an employee or contractor of the broadcaster; | ||
‘relevant person’, in relation to a defamatory statement referred to in subsection (1), includes— | ||
(a) a contributor, or | ||
(b) a person whose presence or participation in the live programme was not invited by the broadcaster concerned and who is not an employee or contractor of the broadcaster.”. | ||
(2) The amendment effected by subsection (1) shall apply only to causes of action accruing on or after the date of the coming into operation of this section. |