Index on Censorship and English Pen produced a widely publicised report “Free Speech is not for Sale”. A copy can be downloaded here. This report concludes that “English libel law has a negative impact on freedom of expression, both in the UK and around the world”. The report makes 10 recommendations as follows:
1. Require the claimant to demonstrate damage and falsity.
2. Cap damages at £10,000
3. Introduce a single publication rule
4. No case should be heard in this jurisdiction unless at least 10 per cent of copies of the relevant publication have been circulated here
5. Establish a libel tribunal as a low-cost forum for hearings
6. Strengthen the public interest defence
7. Expand the definition of fair comment
8. Cap base costs and make success fees and insurance premiums non-recoverable.
9. Exempt interactive online services and interactive chat from liability
10. Exempt large and medium-sized corporate bodies and associations from libel law unless they can prove malicious falsehood.
The report does not address a number of key issues. It appears to take as its model the wholly unbalanced US approach which, in practice, sets the value of reputation at zero and gives automatic priority to freedom of expression. It fails to draw attention to the inconsistency of many of its proposals with the case law of the European Court of Human Rights. No proper explanation is given for the remarkable suggestion that, however serious the allegation, damages should be capped at £10,000.
It is difficult to disagree with Lord Hoffmann’s comment on the report in his lecture on Libel Tourism (see our blog post here)
“The pamphlet claimed to “cut through the intimidating complexity of English libel law” which is another way of saying that it was greatly oversimplified. It is severely short on discussion of the issues. It has some sensible and helpful suggestions but also some very silly ones”.
Reform of the law of libel is long overdue but such reform must strike a fair balance between the rights of the media and the rights of those who are damaged by inaccurate reporting. It does not serve the public interest if powerful media corporations are able to attack the reputations of others with little or no opportunity of redress.