Leading academics joined with legal and media practitioners to discuss the shape of libel reform, in a one-day ‘Reframing Libel’ event at City University London on Thursday 4 November 2010. 
Chaired by Lord Lester of Herne Hill QC (left) and former Liberal Democrat MP, Dr Evan Harris, the event sought to examine the detail of Lester’s private member’s defamation bill, first introduced to the House of Lords in May 2010.
The aim is that the arguments presented yesterday, which will also be published as a collection of working papers, will add to and influence the debate, before the government produces its own white paper on libel, due in January 2011.
As reported by Jon Slattery on his media blog, Lord Lester said that the bill could become law in May 2012, following the select committee part of the process:
“All three of the major parties are committed to comprehensive, balanced reform. I promise you it will happen within the next two years.“
But does Lord Lester’s bill go far enough; and do his propositions make for workable libel laws? Panellists and speakers addressed a wide array of issues. Although there was disagreement on the shape reform should take, in general there was agreement that it was necessary and would solve many, though not all, of the libel law problems.
This was due to the fact that the cost of financing a libel case was at the heart of the so-called “chilling effect”, a theory to which a number of speakers referred.
Costs
For Razi Mireskandari, partner, Simons, Muirhead & Burton, cost is the central issue. “If costs were addressed it would resolve a lot of the issues,” he told the lecture hall of lawyers, students and journalists, explaining that his firm’s libel work is split down the middle between claimants and media defendants.
Mireskandari criticised Lord Justice Jackson’s proposals that CFA success fees and ATE insurance premiums should cease to be recoverable from the losing party: “In my view the recommendations he makes are not workable,” he said. “Because what would happen is that there would not be access to justice to most claimants for a libel defence.”
“In my paper I set out a regime that is very workable,” he claimed. This included several recommendations: to cap costs; to cap hourly rates; to cap success fees and to introduce fixed and staged success fees and staged ATE insurance premiums.
“In my view this is a far more solid basis for reform; it addresses the unfairness of the present costs regime by sensibly “reframing” it rather than imposing radical change.”
Corporations
Magnus Boyd, partner at Carter Ruck, who secured a front page apology for Tesco following allegations about its tax affairs by the Guardian in 2008, explored corporations and libel, looking at Lord Lester’s proposition that a body corporate which seeks to pursue an action for defamation must show that the publication of the words or matters complained of has caused, or is likely to cause, substantial financial loss.
Boyd raised the question of how to define this ‘substantial financial loss’. What terms should be used to define the body corporate, he asked. He raised the issue that defamatory allegation is “likely” to cause “substantial” financial loss will inevitably form the basis for significant and expensive applications which will increase the costs of the litigation and slow the passage of the claim.
The inclusion of the word, ‘substantial’ will also lead to further applications from both sides to determine whether the loss is, or is not, substantial, he said. “As a society we need to acknowledge the value of reputation and recognise its equal status to freedom of expression,” he argued.
“As the number of stakeholders with a direct interest in upholding the right of corporate bodies to protect their reputations increases it would not be just or appropriate to restrict that right to the extent currently proposed without significant further investigation and consultation.”
The ‘citizen critic’
It was for Tracey Brown from Sense About Science (right) and the Guardian’s Roy Greenslade to argue the case of the media and researchers, but Brown chose to f
ocus on the ‘citizen critic’ rather than journalists per se.
The public interest is served by the publication of “uncertain information”, she said, explaining that open discussion allowed ideas to be disputed and scientific progress.
Scientific process by its very nature requires that incomplete and uncertain information is put into the public arena, she outlined. This process had already been distorted by scientific publications’ fears of publishing criticism of research.
Costs, she emphasised, were not the only issue. It was also about developing a new and more ‘robust’ approach to freedom of expression. “There are some people who feel that any claim in society that may be slightly wrong or injure somebody’s feelings means some sort of recourse to law, or to remedy. I think most people are a bit more adult than that and accept that living in society can be a bit of a rough ride sometimes.”
Lawyer Mark Lewis pointed out that people don’t always go after the “deep pocketed defendant”; sometimes the company goes for the individual. His client, Dr Peter Wilmshurst, consultant cardiologist at the Royal Shrewsbury Hospital, brought personal experience of being sued (in an ongoing libel action) to the forum, in his paper about the impact on science and medical research.
He outlined the personal pressures of a libel action: expenses, time, bullying, and the effect on family and life. Wilmshurst emphasised the need for open scientific debate: scientists and doctors are under threat of a gagging libel action whenever they question the messages that device and drug manufacturers want put across, he said. Medical and scientific advances will be delayed and the public and patients will be put at risk unless we have a public interest defence, he believed.
Meanwhile, Roy Greenslade, professor of journalism at City University London and Media Guardian blogger “found it necessary to compromise with caveats and dealing in euphemisms,” in his work. “To paraphrase Queen Mary, when I am dead and opened, you will find the the word ‘alleged’ inscribed on my heart.”
“I think the law, and most importantly the judicial interpretation of the law, has allowed to pendulum to swing too far against freedom of expression and freedom of the press.
“I want to see a law that recognises the existence of public interest, and defines it then sensibly, a law that allows for fair comment, and defines that sensibly too, and law that doesn’t grant organisations and corporations the same rights as individuals, a law that doesn’t mean the defendant is assumed to be guilty until innocence is proven …. and a law that recognises there are better ways to solve disputes than to go to full trial.”
“Fair comment should mean the right to be rude and the right to be aggressive,” he said. Professor Greenslade walked the audience through what he called ‘libel retail therapy’, outlining a ‘shopping list’ of nine aspects of current legislation he would change.
- Capping damages
- Providing a faster tribunal system
- Capping costs and CFAs
- Reversing burden of proof
- Strengthening the public interest defence
- Strengthening the fair comment defence
- Stopping libel tourism
- Stop treating companies like individuals
- Striking out multiple publication rule – “outdated and iniquitous”
And what of the internet? Bryan Cave associate Robert Dougans, who acted for science writer Simon Singh in BCA v Singh and for blogger Dave Osler in Kaschke v Osler, raised a theme that was reflected by a number of contributors: the new difficulties created by the internet.
He commended Lord Lester’s Bill on its provisions to clarify some of these; particularly through reform of the multiple publication rule and attempts to clarify the timescale for removal of offending material. Dougans pointed out that problems remained concerning the role and responsibilities of moderators on comment sites and discussion forums.
Other contributions included: Claire de Than, law lecturer at City University London on libel defences; Dominic Crossley, partner, Collyer Bristow on reframing the time it takes to get to a libel trial; Andrew Stephenson, senior partner, Carter Ruck on science and libel; Hugh Tomlinson QC, barrister, Matrix Chamber with the practitioner’s view; Gavin Sutter, Queen Mary University with an academic perspective; Professor Alastair Mullis & Dr Andrew Scott from University of East Anglia and London School of Economics on ‘taking (all) rights seriously and where it leads’.
A final panel debate included contributions from the chairs Lord Lester and Dr Evan Harris, Padraig Reidy, Index on Censorship, David Allen Green, Preiskel & Co; Mark Lewis, solicitor advocate, Taylor Hampton; and Dr Andrew Scott, the London School of Economics.
Summary: The administrative and costs issue of reform dominated and it is perhaps only once this area is changed, that the substantive balance that the law strikes between the rights of speech and of reputation can be examined unhindered. Lord Lester concluded by philosophising on his liberal beliefs. He is open to the idea that he could be wrong and in light of his fallibility he invited contributions and comments on the substance of his Bill that could inform his dialogue with the Ministry of Justice, emphasising the importance that this reform, at this time, is done correctly.
Video recorded by the BBC College of Journalism, working papers and presentations will be made available via the Reframing Libel site soon.
By Oliver O’Callaghan, Natalie Peck and Judith Townend, Centre for Law, Justice and Journalism, City University London.
In the United States we have engaged in a dangerous trend of blending libel, slander, and slander per se into one broad group, defamation. The problem is that the four recognized categories of slander per se did not require proof of damages but rather reputational harm was assumed–some courts are now assuming actual damages based any category of defamation, including libel. My sincere concern is that this erosion of the elements of proof for a prima facie claim of libel will open the flood gates of litigation and further that statements on the internet will render a speaker subject to suit around the world without any real proof of harm. I will be arguing this exact issue before the New Jersey Supreme Court this coming Spring but would appreciate your reader’s thoughts.