This article was originally published in Solicitors Journal on 8 June 2010 and is reproduced by kind permission

Lord Lester has just introduced a Bill to amend the law of defamation. He says our present laws have a chilling impact on free speech – the life blood of democracy. He sings from the same hymn sheet as the Press who have for the last 9 months launched a vigorous campaign to change our law of defamation.  The Bill consists of 22 clauses and 2 schedules and broken into 5 principal parts namely defences; statutory privilege; publication; cause of action and trial by jury.

There can be very few-including defamation lawyers- who do not endorse the vital principle of freedom of expression and free speech. It is of course self evident that the law of defamation stifles free speech but only to the extent that publishers must ensure that they do not harm reputation. As Lord Hobhouse said in Reynolds [2001] 1AC127 at 238 “There is no duty to publish what is not true: there is no interest in being misinformed.”  Lord Lester complains that the reform of libel through courts means that it is the preserve of a small group of lawyers skilled in its complex rules and procedures.  It has been left to judges to fashion the law.  It may sound trite but surely those lawyers skilled in the complex rules and procedures of libel laws should be the very people to fashion changes, provided that they reflect the changing mores in our society and the need for fairness, and not politicians? After all there do not appear to have been massive protests by the British public about our defamation laws being too harsh. It is a fact that the public don’t like the media and many feel they are less responsible than ever. The fact that the odd case or two has been a bad result for the media does not mean the law is wrong or bad or must be reformed.

Libel law is certainly extremely costly but then all litigation is costly and that is not the fault of the law of defamation rather it is in large part the fault of reforms introduced by Lord Woolf who introduced the Civil Procedure Rules. The CFA has also been exploited by unscrupulous lawyers who profit more than their clients from actions. The Jackson report has made proposals and there is unanimous agreement that there must be far better control and case management by the Courts than there has been.

So the introduction of the Defamation Bill, therefore, misses the point.  At the root of the majority of the problems concerning libel is the issue of costs, not the law of defamation.  English libel law is quite complicated but it has become a lot simpler due to important changes that have occurred over the last 10 years and in particular, with regard to the media. The introduction of the Reynolds defence in qualified privilege as developed in Jameel and subsequent cases such as Singh has led to a very substantial shift and clauses 1-3 of the Bill, for example, dealing with responsible publication and honest opinion are in large measure a restatement of existing law.

Lord Lester’s great skill is in human rights law and one can therefore understand the attitude and approach which he adopts.  However, he has produced a Bill that claims to level the playing fields when it does nothing of the sort. It seeks to completely erode the defamation law we have and it potentially creates the very vagueness and uncertainty he claims to be curing. Particular clauses spring to mind.

Clause 11 of the Bill proposes that a company must show that the publication of the words or matters complained of have caused or are likely to cause substantial financial loss.  This is a major change and places a considerable burden of proof on a company however big it may be to show or prove a likely financial loss and a substantial financial loss.  It is unfair because it is supremely difficult to demonstrate actual loss. It overrules the House of Lords decision in Jameel which specifically upheld the principle that companies could claim damages (admittedly by a 3-2 majority). What is substantial?

Clause 12 gives power to the Court to strike out an action for defamation unless the claim shows that the publication has caused “substantial harm”.   What is substantial harm? This change is unfair and unreasonable. On jurisdiction shopping as in relation to striking out there is again a requirement to show substantial harm to reputation.

Finally, there is in Clauses 14 and 15 a reversal of a presumption trial by jury in defamation proceedings and determining an application for trial by jury.  On paper this may seem to be a sensible thing to do.  However, Lord Lester seems to depart from the world of reality in this change as he obviously does not appreciate that there are so few jury trials now anyway that his change is totally unnecessary.  In any event, if it is inappropriate for there to be a jury trial this can be dealt with before the Master or Judge at the case management meetings.

The Defamation Bill is a waste Parliamentary time which should be dedicated to dealing with the massive economic problems this country has. It is just a sop to the cash strapped media. But it also serves, if implemented, to drive a coach and horses through our defamation laws. Now is not the time for a more liberal interpretation of the law but a time to be conservative; not to have change to appease the media, as opposed to the public; and not to interfere with the fundamental human right of defending one’s good name.

Rod Dadak is head of defamation at Lewis Silkin