The NUJ is backing a Parliamentary report which calls for a clearer definition of public interest and tougher guarantees of freedom of speech.
The union's concerns echo those of the Joint Committee on Human Rights when it says that the present Defamation Bill's attempt to codify the public interest defence does not sufficiently take forward the Reynolds privilege.
The union said that when considering whether a defendant had acted responsibly, courts should include evidence of working to a code of practice, such as the NUJ's code of conduct or those of the Press Complaints Commission's successor, Ofcom or BBC editorial guidelines.
Members of the NUJ sign up to a code of conduct. This requires them to "strive to ensure that information dissemination is honestly conveyed, accurate and fair", to do the "utmost to correct harmful inaccuracies" and to differentiate between fact and opinion. It says material for stories should be obtained by honest, straightforward and open means, with the exception of investigations that are in the public interest and which involve evidence that cannot be obtained by straightforward ways.
The committee of MPs and peers said that Clause 5 of defamation Bill, which would require website operators to remove defamatory material following a notice of complaint if they had no means of contacting the author, would have a "chilling effect" on freedom of speech online.
The report said: "We think that this could create a chilling effect, whereby statements which are in fact lawful, by virtue of an available defence, are removed from the public domain on the basis that a claimant has asserted they are defamatory."
The NUJ has argued, as part of its submission to the Leveson Inquiry, that by singing up to a independent regulatory body publishers should be able to protect themselves from the full costs of defamation action by having a cheap arbitration service and code of conduct which shows their intent to pursue responsible journalism.
The NUJ believes the Bill:
• must remove the right for corporations to sue. Human rights apply, and should only apply, to people. Corporations can protect their brands and trading positions but should be able to sue only if they are able to prove actual financial damage. Corporations are already able to exert a range of influences on journalists and publishers, and corporations can sue for malicious falsehood as well as having a range of other legal recourses. Their individual staff and executives are able to sue in their personal right if they wish and, if a corporation wishes to fund that, it is up to their shareholders to decide whether that is appropriate.
• should include the proposal to include a test of substantial harm. The laws of libel are often used by those with money or power to pursue trivial claims to force a publisher, particularly one with limited funds, to withdraw at a very early stage from publishing true but defamatory material. Having to prove substantial harm should reduce these routine attempts to intimidate journalists or publishers with limited funds.
The NUJ said that while it is good practice to contact the subject of a story before publication, it is not always possible for a variety of reasons -- the threat of a lawsuit, the triggering of an injunction and the threat of physical violence being just three. Injunctions are often sought by the rich and powerful, keen to prevent publication of a detrimental story, at least until they have had time either to hide damaging evidence or develop an appropriate PR strategy of damage limitation.
It said: "While rushing to print is no excuse for poor journalism, in a world where journalism is part of a commercial operation in a 24-hour news environment getting the story first is crucial for a newspaper or broadcaster's commercial viability.
"Parliament and the courts need to understand that if we are to have a free press run on commercial lines then urgency is an important criterion as a publisher who does not believe in urgency will soon go out of business. Publishing something quickly is nearly always in the public interest since news is highly perishable and free expression relies on having publishing or broadcast outlets in existence to do the publishing."
On the topic of the internet, the NUJ said: "Comments on and discussion about stories are an important part of the work of news publishers and broadcasters. Moderating these comments can be extremely burdensome, especially if thousands of comments are received each day. It is standard practice for many publishers to post-moderate. In effect, this means using the abuse alerts to pick up offensive comments. Checking for offence, abusive and obvious defamation is fairly quick and such comments can be quickly removed.
"However, some comments might attract complaints of defamation where the underlying truth of the defamation cannot be easily verified. To prevent publishers from feeling obliged to remove every potential slight from the site there needs to be a way of quickly and cheaply deciding whether such comments should be removed.
The NUJ believes that the new press regulator should make a recommendation to the publisher on whether it would be appropriate to remove such a comment. If the publisher decided to ignore the advice, then it would lose the innocent publication defence and the claimant could sue. In the meantime, the publisher should mark the comment as in dispute to limit its spread around the internet.
The NUJ supported the report's demands which said:
• the government should provide reassurance that those republishing defamatory material will be properly protected by the proposed clause establishing a "single publication rule". If it cannot, the Joint Committee encourages the government to explore an alternative defence of "non-culpable re-publication".
• the Bill be should be amended to ensure that corporate claimants can sue only where there is substantial financial loss incurred, an issue not addressed in the Bill at present; and
• the legal aid regime should ensure that all persons, regardless of financial means, can have access to justice in defamation proceedings.
Dr Hywel Francis MP, chair of the committee, said: "The Bill is a timely response to a pressing issue, and we welcome the government's recognition of the need for more protection for those publishing in the public interest. However, we are not convinced that the Bill's proposed public interest defence does that effectively. We propose an alternative that is both clearer and more flexible. This would help to ensure that the Bill fulfills its main aim of rebalancing the law of defamation in favour of freedom of speech."