The publication of Lord Lester’s Defamation Bill is intended to contribute to the “Libel Reform Debate”. At Inforrm we take the view that this is a proper debate to be had, with important points to be made on both sides. However, as we have said on a number of previous occasions (for example, here), the debate is not advanced by attacking those with opposing views as being naive or self interested. Readers of this blog and of the press coverage of libel reform issues will know the positions only too well. The “libel reformers” get the large majority of positive press coverage. From that side, the most common caricature is of anyone who opposes the libel reform agenda as being a greedy, self-interested, claimant lawyer, intent on preserving massive libel fees. On the other side, proponents of libel reform are sometimes described as naive tools of media self-interest who have failed to understand the careful balancing required in a viable libel law.
We had hoped that Lord Lester’s measured and thoughtful Defamation Bill would have moved the debate onto a new level. Unfortunately not. In a piece in the Guardian on Monday, entitled “Libel reform forces its way up the political agenda” “Index on Censorship” Chief Executive John Kampfner sets out to lower the tone. Perhaps he wasn’t responsible for the sub-title “Lord Lester’s private member’s bill faces opposition from the legal profession” but he must take responsibility for the content. The big danger faced by the Bill, he tells us is that
“it is destroyed or watered down beyond recognition, as the government caves in under pressure from those in the legal profession who have made tidy profits from an archaic and unbalanced body of law”.
So, anyone who criticises Lord Lester’s Bill is a financially self-interested lawyer. To rub the point in he tells us that “The claimant cabal has already begun to fight back”. Not only are these people motivated by money but they are, apparently, afraid of free speech:
“Many lawyers appear perturbed by the idea of free speech. They are comfortable in a situation in which they, and not an elected parliament, rule what information the public has a right to know. They, and they alone, have a vested interest in maintaining the status quo”.
It is easy to dismiss this as simple nonsense but Mr Kampfner is an intelligent and experienced journalist who, we are sure, writes this kind of thing because he believes it. This is worrying.
There are some interesting comments on his article on the “Guardian” website. In relation to the last point about lawyers being perturbed by the idea of free speech one commentator says
“More lawyers are perturbed by the idea that innocent people could have their lives ruined by careless talk, without any redress whatsoever. Like Dawn Reed and Christopher Lillie, wrongly accused of child abuse. Under most countries’ laws their destroyed public and private lives would be uncompensated. Thankfully English law allowed them to recover something to go towards their shattered lives”.
Another says on the same point:
“Who are these people? Could we have some examples please? I am a lawyer. I think the above is claptrap. Conspiracy theory nonsense. Some people think that many of the criticisms of the law of libel are misplaced (not all of them). That people disagree with you does not mean that they have a vested interest in the status quo (I don’t agree with you, and have no vested interest at all despite being a lawyer).”
We suggest that the time has come for some mature debate – without name calling. The Libel Reform Campaign began the debate by seeking to identify some problems and proposing some solutions. A number of issues have arisen in relation to both “problems” and “solutions”. It seems to us that it would be helpful to clarify, point by point, where the debate presently stands.
The PEN/Index on Censorship Report, “Free Speech is not for Sale” deals with 10 areas: 1. The burden of proof; 2. The capping of damages; 3. A “single publication rule”; 4. Libel Tourism; 5. The establishment of a “libel tribunal”; 6. Strengthening the public interest defence; 7. Expanding the definition of fair comment; 8. Capping of costs, ending recoverability of success fees and ATE premiums; 9. Exempting interactive online services and interactive chat from liability; 10. Exempt large and medium-sized corporate bodies and associations from libel law.
Over the next couple of months we would like to debate each of these areas in turn – considering whether a “problem” has been correctly identified and looking at the nature of the solution proposed, at both pros and cons. We want to do this without attacking the motives of the proponents of any arguments: let’s assume that libel reformers are responding in good faith to proper concerns and that their opponents are raising what they believe to be rational counter-arguments with neither promoting a hidden agenda.
We will begin, later this week, with a post on the “burden of proof”. We invite contributions from readers – on all sides of the argument, provided only that they follow the principles of mature debate and deal with the arguments, not the motives of those who are advancing them.