This is the presentation given by Professor Alastair Mullis to the Westminster Policy Forum “Libel & privacy law ‐ challenges for reform” on 15 June 2010. It is reproduced with permission and thanks.
The English law of defamation has been the subject of considerable attention, much of it highly critical, over the last couple of years. It has been said that its archaic rules chill free speech generally and academic debate in particular. Our law has been characterised as being out of line with the rest of the world in terms of free speech. London has apparently become the libel capital of the world with droves of libel tourists, or as the Americans would have it ‘libel terrorists’, lining up to sue those who publish books and articles that make an important contribution to public debate.
That the English law of defamation is not perfect is not in doubt. There are issues, such as the high cost involved in bringing and defending a defamation claim, that demand early attention (though hopefully informed by a careful analysis of properly collected evidence rather than, as was the case with the last government, an attempt to curry favour with the fourth estate by delivering a kicking to ‘venal’ claimants’ lawyers). I would also like to see serious thought being given to the abolition of trial by jury in libel cases and greater use being made of binding alternative dispute resolution. There are also some technical changes that I think are worthy of serious consideration, but on the whole I contend that the law is not as broken as its critics claim. To prove this, rather than undertaking a detailed analysis of the existing law, I want instead to conduct a thought experiment.
I would ask you to imagine a world in which we could start again with the law of defamation. The question I want to pose is; what would a law of defamation that properly balances the socially and personally valuable rights to free speech and reputation look like in this perfect world? In my opinion, it would be remarkably like the law we have currently.
Presumably, our starting point would be (as the current law) that, subject to certain defences, the publication of an false imputation that adversely affects a person’s reputation should be actionable. We might disagree about how substantial any harm had to be, but few people I suspect would want to completely rid our law of a remedy for defamatory words.
Secondly, most people would not wish to sanction the publication of true facts. Truth should therefore be a defence but on whom should the burden of proof be placed. Though this is not beyond argument, I remain convinced that on balance it should lie, as it currently does, on the defendant essentially on the basis that it focuses the attention of publishers on the question of whether the allegations being made are true. “Without such a legal responsibility, speech would become cheap and the proper restraints placed on the media, or indeed any person, when making serious allegations would be undesirably loosened”.
Third, our right to express our opinions, however eccentric, in a strong and forthright manner is an important aspect of freedom of expression. Those expressing opinions should not be made to prove the truth of that which is incapable of objective proof. Instead they should be protected even if they express themselves strongly and intemperately provided only that they do not make up any facts on which they then comment. What then would such a defence look like? Again, in my view, and interestingly the drafters of Lord Lester’s Bill agree, not very different from the existing fair comment defence which protects comments honestly made provided an honest- minded person could hold the opinion and the facts on which such comment was made were true. Again, there is no real cause for change in my view.
Fourth, sometimes when discussing matters of great public interest, notwithstanding the best efforts of authors and editors, untruths creep in. Yet the importance of the subject matter demands that publication be made. Though some may disagree, it is my view that most people would accept the risk of some untruths being published in the cause of proper discussion of matters of public interest. It is only through vigorous public debate and engagement with controversial matters that the truth is likely to be revealed. Our law should therefore have a public interest defence. Beyond proof that the subject matter of the publication is in the public interest what conditions should be met before a defendant can rely on the defence. Here we have a stark choice; do as the Americans do and allow a defence where the writer honestly believes that what they publish is true or require, as English law currently does, proof by the defendant that he acted responsibly. You will not be surprised to know that my view is that we should stick with the existing English law position. Basing the defence merely on the journalist’s honest belief as to truth would be a recipe for sloppy journalism in which there would be no incentive for initial, seemingly persuasive sources and indications to be further checked. The existing defence requires the journalist to have validated his or her faith in the story by engaging in reasonable journalistic practice. This seems the more appropriate standard when what is contemplated is the exoneration from liability for misinforming the public and damaging without justification another person’s reputation.
Finally, I suspect that most people would want any sum of damages awarded to be moderate, provision to be made for a compulsory apology, and a mechanism put in place whereby a defendant who realised that they got their story wrong would be able to apologise swiftly and get credit for so doing. How moderate damages should be is likely to be a matter on which there will be disagreement but I do not think that the current effective maximum of £225,000 is wholly unreasonable. Interestingly English law, responding to media pressure does not allow the court to order the defendant to apologise, though it should, but does provide, through the offer of amends procedure, a relatively straightforward escape route which if followed leads to a heavy discounting of damages and costs. Contrary to what the media consistently claims, it does have an easy and cheap way out when it makes a mistake.
There are other matters that I could discuss, not least the non-problem of libel tourism and the question whether corporates should be allowed to sue in the absence of proof of financial damage, but I am conscious that my time to speak has come to an end. I hope I have persuaded you that the current calls for reform should not in general be heeded. These calls have often been shrill and have been very insistent but too often they have not been based on a proper understanding of the law. By way of example, Dr Singh, a writer I admire very much, has consistently called for a public interest defence when one already exists. Yet few in the media have challenged him on this. If we are to have libel reform, so be it, but let us be clear on what we want to achieve and why, let the reform be based on a proper understanding of the law and its effects, and whether such reform truly benefits the public in general.
Alastair Mullis is a Professor of Law at the University of East Anglia, and (with Andrew Scott) the joint author of the paper “Something Rotten in the State of English Libel Law?”