Lord Lester’s Defamation Bill is due for its Second Reading on 9 July 2010. The Bill sets out to provide a partial codification of the defences to libel actions. Some solid work has gone into the drafting of the bill but it is not comprehensive and proceeds on the (unstated) assumption that all the traditional elements of the tort of libel remain in place. The aim of this post is not to provide a detailed examination of the Bill. Professor Mullis and Dr Scott have considered it in some detail in their post and even more comprehensively in their draft paper. Our purpose is more limited: we will mention two general criticisms and make a proposal as to the way forward.
The Defamation Bill was produced in response to the “libel reform” campaign – largely driven by academics, bloggers and NGOs. The NGOs provided the “advisory committee” to the drafters of the Bill. It has been pointed out that, despite this genesis, the Bill actually does very little for these campaigners, being largely focussed on the “mainstream media”. Nevertheless, the Bill bears a number of signs of its origins. Overall, despite the obvious thought that has gone into it and the sophistication of some of its provisions, we believe that the Bill has two fundamental problems: it is likely to lead to more, not less, litigation and it is in parts seriously unbalanced. It will not save costs or shorten libel litigation.
On the first point, although there are arguments both ways, we believe that on balance there is a good argument for statutory codification of the common law. If done well this can to provide transparency and certainty. But codification is an exercise which has to be carried out with great care. In particular, it is important to provide a clear explanation of the relationship between the common law and the “code”: replacing the former with the latter. In the absence of such clarity the law is likely to be made more, rather than less, complex as the courts grapple with the issue of the relationship between the partial code and the pre-existing common law. This is precisely the problem which this Bill produces.
Although there a number of points which could be made about the Bill under this head, we will give just two examples. First, there is the statutory reformulation of the “responsible publication defence”. According to the Explanatory Notes this “builds on” the common law. But how does it differ from the present position? This is not clear. On one view, it provides an identical “look at all the circumstances” test. On another view, it restricts the range of relevant circumstances. The Explanatory Notes give no hint as to why certain Reynolds factors such as “notification” and “tone” have been omitted. How can this be resolved? Only by further litigation – with the obvious uncertainties for both claimants and defendants as the issues are worked through.
Second, there is clause 12 – a mandatory requirement that an action must be struck unless the claimant shows that the publication caused “substantial harm” to reputation. Does this change the common law position where claims can be struck out unless the claimant demonstrates that there is a “real and substantial tort” (an approach which has been increasingly used in recent cases)? Again the position is wholly unclear and can only be resolved by litigation. It seems likely that, in practice, defendants will seek to challenge every libel claim on a “clause 12 basis” – with “mini trials” taking place on the issue of “substantial harm” at the outset of every action. Once again, costs and uncertainties increase.
The second point is one of balance. The Explanatory Notes tell us that the Bill aims to
“strike a fair balance between private reputation and public information as protected by the common law and constitutional right to freedom of expression”
Some aspects of the common law favour claimants, others favour defendants. For example, there is a “remedial hole” at the centre of the common law of defamation – a court cannot order a defendant to correct, apologise for a libel, or even provide a right of reply. The Court cannot “declare” a published statement to be false. In contrast to the law in many other jurisdictions, the very things that most claimants want are unavailable. A cheap, speedy set of remedies along these lines would address a number of the problems of current libel law. But they are not popular with the media and are not addressed in the Bill which operates fairly and squarely in “conventional” terms. Instead, the Bill is devoted to “improving” the available defences – making no difference to the position of “bloggers, scientists or NGOs”.
The Bill contains no provisions which seek to enhance the rights of those defamed. It is all one way. A number of provisions are seriously unbalanced – providing, in part, what might properly be described as a “defamers’ charter”. Once again, we will give just two examples from a number of possibilities.
First, there is clause 11 which provides that a “body corporate” which seeks to pursue an action for defamation must show the words complained of have caused or are likely to cause it “substantial financial loss”. This appears to be designed to prevent “bullying” litigation by large companies. So far so good. But what about small companies which are defamed – a small struggling restaurant falsely accused of infecting customers with salmonella? What about the non-trading corporation – the small corporate charity which doesn’t aim to make money but which places volunteers and is wrongly accused of employing paedophiles? Are these corporations to be left without any remedy at all? The uncertainty of the word “substantial” is bad enough in this context but the apparent removal of remedy from “non-trading” corporations is startlingly one-sided. It, incidentally, operates against the interests of the very NGOs campaigning for libel reform.
Second, there is the combined effect of clause 8 and paragraph 11 of Schedule 1 which provides “qualified privilege” defence to someone who publishes a copy, extract or summary of material in an archive which has been there for one year without complaint. As Mullis and Scott point out (at paragraph 49 of their paper) this is both wide ranging and unmentioned in the Bill’s “Explanatory Notes”. The implications are extremely far reaching. For example, there are numerous “abuse” websites – hosted in jurisdictions where legal action is impossible or impractical which contain “archives” of defamatory material. Take what (we hope) is a hypothetical example: a website called “Bent Planners” on which aggrieved individuals post false and outrageous allegations of fraud corruption and other misconduct against planning officials, councillors, businessmen and so on. A site of this kind is likely to be hosted in the US (and hence effectively immune to litigation) and may be obscure. As a result, the victims of the false allegations will simply ignore them. However, on Lord Lester’s proposal, one year on, the allegations can be reproduced in full on the front page of a national newspaper – which would then have a complete defence to a libel action. The only way to avoid this is for the victims to hunt the internet and make repeated protests about defamatory postings. Where is the balance here?
Conclusion and a proposal
We have picked up two general problem areas in the Bill. There are some good points which we have not mentioned and some other issues of drafting, both small and large. The overall difficulty is that this is a “private enterprise” attempt to reform a complex area of the law. The introduction of coherent balanced reform in this area needs careful and detailed consideration by experts. The Law Commission was created in 1965 to carry out just this task. It is chaired by a Lord Justice of Appeal and has distinguished practitioners and academics as “Commissioners”. Its working papers and reports are thorough, balanced and command wide respect. Unlike the last government’s “Libel Working Group” the Law Commission cannot be “packed” with supporters of one particular point of view in the debate.
We suggest that the law of libel should now be referred to the Law Commission by the Lord Chancellor along with a request to conduct a full and expeditious review. The Law Commission can consult and it can produce a considered and detailed working paper. The work of Lord Lester’s team can be fed into the process. After full consultation it can produce a report, appending a draft reform bill. The report can explain the proposed changes in detail and their relationship to the common law. This is the proper procedure for law reform in England and Wales and one which should be adopted in the case of libel law. Of course, a Law Commission report is not instantaneous but with good will it could, no doubt, be completed and its recommendations enacted during the current Parliament. Libel reform is too important to be rushed.