Opinion: “Lord Lester’s Defamation Bill 2010: a distorted view of the public interest?” Alastair Mullis and Andrew Scott

This post is an abridged version of a paper which will appear in the journal Communications Law later this year and which can be read here in draft.

The desire to avoid the hassle and expense associated with libel actions can sometimes restrict publication of the outputs of investigative journalism, and stifle important scientific and medical debate. Lord Lester’s Defamation Bill, which is to receive a Second Reading in the House of Lords this Friday, seeks to address these concerns by revising many elements of the law of libel. As we have stated elsewhere, however, we are sceptical as to whether the substantive law of libel contributes significantly to the existence of the perceived problems. In contrast, the sheer cost of fighting libel actions – especially with the opportunities for legal pressure and gamesmanship that this allows both sides – can be a real problem. This is exacerbated by the fact that the procedural aspects of libel actions are in some respects unnecessarily extenuated. Yet, the current Bill is spectacularly silent on these pre-eminent concerns.

The introduction to the Explanatory Notes presents the substantive law as an incomplete and under-principled corpus. It is deemed ‘out-dated’ in various respects. Parliament is accused of having ‘failed’ to intervene to draw the law into the modern era. All of this rhetoric, which is not always supported by a balanced presentation of the existing law, is clearly intended to set a tone for the Second Reading debate: the package of reforms reflected in the Bill should be understood as a modernising, natural and desirable antidote to a body of law that is derisory and unbalanced in effect.

In our view, the substantive law of libel is in need of some measure of tweaking, and a number of the proposals included in the Bill are to be welcomed. We fear, however, that the Bill and its accompanying Explanatory Notes present a caricature of the existing law that is significantly removed from the reality. So far as the Bill itself is concerned, rather than relieving the law of technicality, some of the proposals would aggravate existing uncertainty. Some are not founded upon any supporting empirical research base, while others are simply misguided. The first-stated purpose underpinning the Bill is “to strike a fair balance between private reputation and public information”. With respect, we doubt that this has ever been a motivating factor for the endeavours of those involved in the libel reform movement. Rather, to us, the Bill seems manifestly to be infused with the aim of alleviating as far as possible (perhaps eradicating) the ‘chilling effect’ of libel law on journalists, media organisations and others. Yet, the chilling effect on freedom of expression is precisely the purpose of libel law. It prevents unwarranted injury to reputation by means of incautious speech, and is undesirable only to the extent that it causes true and important information to be withheld from the public sphere. The Bill does not properly valorise individual reputation, or reflect the wider societal importance of that concept. Far from modernising the law for the internet age, the authors of the Bill would like to return us to the Wild West.

Perhaps to underline the contribution that this Bill is intended to make to the defence of publications that are in the public interest, the first three clauses address existing defences that apply when such material is at issue. In principle, this is entirely laudable. The Bill includes, however, many other reforms that would be of general application. We are concerned that the wholesale adoption of the full range of proposals could result in the effective death of libel, a scenario that we fear would remove any reason for restraint by the mainstream media, politicised NGOs or those who publish on the Internet.

In this context, it is reasonable to ask who is speaking in this policy debate on behalf of claimants’ interests, and of the broader interests of society in the defence of reputations. Perhaps surprisingly to some, we do not see it as our role to advocate on behalf of the claimant (or claimant lawyers). Inevitably, however, when the subject matter on which one focuses reflects one perspective only any response thereto tends to present as antithetical. We would like to reemphasise therefore, that we are sympathetic towards a number of the general aims of the Bill as set out in the introduction to the Explanatory Notes. That said, we find ourselves unable to offer general support to a Bill that rests upon a distorted view of the public interest.

The following paragraphs offer our main comments on particular aspects of the Bill. For reasons of space, we have omitted discussion of some themes on which we substantially agree with the Bill.

Clause 1: responsible publication

Under clause 1, any defendant would have a defence if he or she could show that:

(a) the words or matters complained of were published for the purposes of, or otherwise in connection with, the discussion of a matter of public interest, and

(b) the defendant acted responsibly in making the publication.

The clause is said to give statutory endorsement to, and to build upon, the common law Reynolds defence. At first glance, it might be mistaken as a codification of the common law privilege developed by the House of Lords and Privy Council. Arguably, however, the clause goes much further than the existing law, and in so doing unjustifiably extends the protection currently available to defendants where they get their facts wrong. Our comments are threefold.

First, the Bill redefines the concept of responsible publication. Clause 1(3) provides that all the circumstances of the case are be taken into account in determining whether publication was responsible. Clause 1(4) then provides a non-exclusive list of factors that may be relevant. Importantly, this list omits a number of factors previously included by Lord Nicholls in Reynolds: the source of the information, whether the article contained the gist of the claimant’s version of events, and the tone of the article. It cannot be a coincidence that precisely these factors have caused difficulty in a number of decided cases. Surely it is not intended that a publication that involves embellishment of the facts and on that basis delivers a ‘verbal kicking’ to the claimant should be free from liability. If ‘responsible’ means anything, it must require that the claimant’s side of the story is put and the tone is measured. We note further that the clause 1(4) listing also does not include the idea that the defendant’s post-publication behaviour should be responsible if the defence is to apply (for example, by correcting any identified error of fact). It may be that such factors can still be relevant given the generality of clause 1(3). Nevertheless, their omission can only have been a deliberate attempt to de-emphasise their importance. It promises extended litigation in future to determine whether the law has shifted or remains as it has been.

Secondly, the Bill extends the scope of the defence to cover comment. Clause 1(2) indicates that the defence should be available irrespective of whether the publication contains statements of fact or opinions. The Explanatory Memorandum states that this avoids the ‘technicality’ of distinguishing between fact and comment, and ensures that part of a publication will not fall outside the defence simply because it not factual in nature. This approach directly contradicts the understanding set out by Lords Nicholls and Hobhouse in Reynolds to the effect that the defence applies only to erroneous statements of fact. It is unclear to us why the authors of the Bill wish to apply a more stringent test to comment (responsibility) than that which currently pertains (honesty), especially if the fair comment defence is to apply to ‘false but responsible’ as well as true underpinning facts (see below).

Our third point involves a synthesis of the above. It appears that the intention of the authors of the Bill may be to see the law treat as responsible – and hence legitimate – the publication of material that includes vituperative comment, based on erroneous facts, that does not include any explanation offered by the subject. This would amount to a comprehensive defence for public interest publication that would be excluded only very rarely on grounds of irresponsibility. We cannot accept that such publications are worthy of protection. Indeed, given that by definition any such commentary would be focused on matters of significant public concern, a law of this type risks errant publications that might do immense damage to the public good. If all this is what is intended, then we think that the authors of the Bill should have been straightforward in presenting this intention instead of relying on an obscurantist sleight of hand. The relation to Reynolds is minimal; the revision is not merely technical. [We note also that if the tone of the piece is irrelevant to the detemination of responsibility and the honest opinion defence is to apply to ‘responsibly published’ as well as true underpinning facts (see clause 3(4)(b)), then this would be the position notwithstanding the exclusion of comment from the responsible publication defence.]

In passing, we note that the latter parts of clause 1 set out to clarify the reportage defence; rather than codification, we would have recommended statutory abolition.

Clauses 2 and 3: honest opinion

The changes made in clauses 2 and 3 are rather more subtle and appropriate than those made in clause 1 and are, for the most part, beneficial. In large part, clause 3 restates the existing common law defence. We agree that reliance on the perception of the ordinary reader is preferable to that of the All Souls philosopher (clause 3(3); contrast the over-sophisticated analysis pursued by the Court of Appeal in BCA v Singh [2010] EWCA Civ 350). We do not agree, however, that the defendant should be free to rely on facts that did not exist at the time of the publication (clause 3(6)(b)), but rather prefer the approach of Eady J in Lowe v Associated Newspapers [2006] EWHC 320 that requires the defendant to show that he or she had knowledge of the facts at the time of publication. In principle, we consider it entirely acceptable for the defence to apply where reliance has been placed on responsible publications that ultimately prove to be false (clause 3(4)(b)).

One reservation we hold is that the defence may sometimes fail if the underlying facts prove not to be true or responsibly published. This may arise, for instance where a blogger comments on an article published in a national newspaper assuming it to be accurate. To avoid application of the repetition rule in such circumstances, and rather than distort the defence of responsible publication, we would suggest introduction of a stand-alone defence (perhaps aligned with the defence of non-culpable republication noted below; see also clause 9(2)-(3)).

Clauses 4 and 5: truth

Clauses 4 and 5 recast the existing justification defence, renaming it truth (only to revive the ‘justification’ nomenclature – presumably not deliberately – in clauses 5(3) and (4)). Sensibly, the burden of proof remains on the defendant.

We do hold reservations over clause 5(3) which provides that the defence “does not fail only because a particular meaning alleged by the claimant is not shown to be substantially true, if that meaning would not materially injure the claimant’s reputation having regard to the truth of what the defendant had shown to be substantially true”. We understand that the drafters were concerned about the case management and pleading difficulties to which the justification defence currently can give rise. In our view, however, the addition of clause 5(3) will add to, not lessen, these difficulties. Not only will it not deal with the pleading difficulties, it will also require additional argument over whether there is a material difference between what was alleged and what has been proved.

We also consider it a shame that the opportunity has not been taken in this Bill to address two fundamental issues: the existence of the single meaning rule that is a cause of many of the pleading and case management problems to which the defence gives rise, and the possibility that the issue of meaning might be determined at an early stage of the proceedings so as to limit costly ‘over-preparation’ of cases.

Clauses 6, 7 and 8: statutory privilege

The restatement and extensions of the law in these clauses is largely sensible and uncontroversial. There is one element, however, that we consider to be truly preposterous. The errant feature is that found in Schedule 1 Pt II, para 12. This is not mentioned at all in the Explanatory Notes, but yet creates an entirely new category of statutory qualified privilege for fair and accurate copies of, extracts from, or summaries of material in an online archive. The applicable conditions are that the material has been publicly available online for a period of at least 12 months, and that no challenge has been made indicating that the material is considered to be defamatory. The effect of this provision would appear to be that if a statement, hidden away in some obscure, scandal-mongering online archive, is subsequently published in a national newspaper, then the newspaper would be protected by qualified privilege. We appreciate that this may be regarded as a ‘natural’ extension of the rule in clause 10; it would be ridiculous if only the original archive publisher could subsequently republish. For us, however, this feature rather highlights the weakness of the proposed single publication rule and the relative advantages of a ‘non-culpable republication’ defence (see below).

Clause 9: responsibility for publication

This is a second clause that is very much more radical than might initially be apparent. Clause 9(1) provides an absolute defence to ‘facilitators’ (persons concerned only with transmission or storage but with no control over content). It is not clear whether this extends beyond the protection already given to information society services under the EU Electronic Commerce Directive. The answer lies in the interpretation of ‘facilitator’. If the category includes those who host material on the internet, the defence provided is much more extensive. In our opinion, this would be dangerous. It would remove any incentive for an ISP to remove material, even if that material is found by a court to be defamatory. Yet in cases involving anonymous or impecunious posters, the claimant’s only realistic avenue is to have material taken down by the ISP. The definition of facilitator might also extend to book-sellers or printers, and hence allow them absolute protection from legal suit. If this is the intention, then the drafters of the Bill should be clear that this is the case and not fundamentally change the law by unannounced sidewind.

Clause 10: single publication rule

Clause 10 is intended to replace the existing Duke of Brunswick ‘multiple publication’ rule with a single publication rule. Under existing English law, publication occurs on each occasion that a statement is accessed as opposed to the occasion on which it is – in lay terms – published. In the context of the maintaining of online digital archives by traditional media companies, this rule results in a heightened legal risk that we agree is undesirable given the social benefit delivered by such archives.

The effect of the clause is that, as a general rule, the limitation period in an action for libel or slander runs from the date that the publication was first made available to the public. We have serious concerns about the effect of the clause as drafted. We also do not accept that the case for abandonment of the multiple publication rule has been made out. A single publication rule (particularly with a one year limitation period) does not allow for an appropriate balance to be struck between media freedom and competing rights to privacy and reputation. That envisaged by the Bill would automatically absolve the author of an impugned archive statement of any responsibility for its making after the requisite limitation period following first publication. We do not consider that this is appropriate. Not every author of a defamatory statement – or every archivist of online content − is deserving of exoneration from liability. In the online environment, the availability of past statements can continue to be horrendously damaging. At whatever remove it is made from the first uploading of the impugned statement, each reading has the potential to harm the reputation of the person defamed.

Consequently, it is our view that the multiple publication rule should be retained, but a new defence of ‘non-culpable republication’ introduced. This would be available to an archivist after the elapse of one year after the initial publication of the story in question. To avail of the defence, the archivist would be required to append a notice to the archived online article. We would suggest that such a notice should indicate that a challenge to the accuracy of the original story had been made under the new statutory defence and a summary of the complaint offered. Should the publisher in fact be persuaded of the inaccuracy of the original article on the approach of the prospective claimant, he or she may choose instead to amend the archived article or to attach a correcting notice. Importantly, the archivist-publisher could choose not to append a notice on request of a prospective claimant. This would allow him or her to assert the accuracy of the original piece, and to retain the option of fighting an action where it was deemed desirable or necessary to do so.

Clause 11: proof of substantial financial damage by corporations

Clause 11 provides that a body corporate must show that the publication “has caused or is likely to cause, substantial financial loss”. This suggestion was rejected by a majority of the House of Lords in Jameel. We can see the attraction of such a change, but would be concerned that it seriously undervalues the centrality of corporate reputations to the economic system. Providing proof of substantial financial loss is notoriously difficult, a fact that may often preclude legal action. Given the current state of knowledge, this reform would be a step in the dark. It should not become law in advance of supportive research being undertaken.

Clause 13: libel tourism

In terms of numbers of actions actually brought, there is no demonstrable problem of libel tourism. We accept, however, that the threat of legal action in England may chill freedom of speech elsewhere. That said, in our view the solution to any unwelcome aspects of this phenomenon will be parasitic upon wider reforms to the law, procedures and funding of libel actions. There is no need to introduce a specific rule to address it.

Against that background it is perhaps not surprising that we are not persuaded by the need for clause 13. Indeed, we consider that the clause would positively interfere with the right of claimants to bring entirely legitimate action. It is presumably not intended to preclude all claims where the greater number of publications was made outside the jurisdiction. Such a position would be nonsensical as a person’s reputation can be seriously damaged even by a single publication. More fundamentally, the provision seems to require the courts to take account of an irrelevant consideration: the extent of publication in another jurisdiction does not influence the question whether substantial harm has been suffered by the claimant here. As Lord Hoffmann has put it:

“there does not seem… much logic in saying that if you have significantly damaged someone’s reputation in England, it should be a defence that you have published ten times as many copies of the libel somewhere else”.

The provision is simply misguided, and litigation would appear necessary to determine its meaning. It should be abandoned.

Alastair Mullis is Professor of Law and Dean at the Norwich Law School, UEA. Andrew Scott is a senior lecturer in the Department of Law at the LSE.   Alastair Mullis can be contacted at a.mullis@uea.ac.uk and Andrew Scott at a.d.scott@lse.ac.uk . The authors wish to thank Mr Benjamin Pell, whose knowledge of, and expertise in, this area are without parallel, and without whom this article would not have been written. Our deepest thanks are due to him albeit that he would want us to make clear that all the remaining mistakes are ours.