A two stream libel regime with most cases heard in the County Court or a tribunal, would reduce complexity and costs, argue Professor Alastair Mullis, from the University of East Anglia, and Dr Andrew Scott from the London School of Economics.
In a new academic paper, first presented at the Reframing Libel symposium at City University London last Thursday, the pair propose the overwhelming majority of English libel cases should be considered by the County Court, the Tribunals Service, or “an appropriate media (self-)regulatory body”. Only very unusual cases would pass through the second stream and be heard before the High Court.
They raised the question of whether a right to reputation could be protected by Article 8 of the Human Rights Act, as previously discussed on the Inforrm blog. Given that Strasbourg jurisprudence has allowed Article 8 to encompass a person’s physical and psychological integrity, it could be reasonable to contemplate a Convention right to reputation, they suggested.
Their presentation outlined:
First stream: libel tribunal / county-court / (self-)regulatory body
- to decide capability of meaning; applicability of justification / fair comment defences
- to award max damages £10k for Article 8 harm (soft cap imposed by dint of choice of route); no capacity to award special damages
- to determine appropriate discursive remedy
Second stream: High Court
- to consider claims for serious Article 8 harm and special damages only; no damages for vindication / intangible harm
- reliant on claimant’s capable (reasonable) meaning and harm-causing meaning respectively
- cap on Article 8 harm benchmarked to damages for physical injury; no limit on special damages
Mullis and Scott discussed how damages awarded to vindicate reputation, but asked whether monetary award is the best way to achieve this. They preferred “discursive remedies,” such as “mandated apologies, corrections, rights to reply, and possibly declarations of falsity”.
The pair, while wishing to minimise the so-called ‘chilling effect’, are worried by particular aspects of the libel reform movement and the subsequent reform bill, currently passing through Parliament, they said.
“We are concerned that by placing too much emphasis on revising highly technical aspects of the substantive law, Lord Lester’s Bill distracts attention from other possible reforms that could achieve his goals more simply and effectively. As things stand, he promises lawyers access to a lucrative retirement fund.”
Scott and Mullis said that they examined “the constitutional principles that should underpin a coherent libel law and the purposes that any such law is intended to achieve”.
“For most cases, our proposals would radically reduce complexity and costs, limit the chilling effect on freedom of speech, but at the same time secure the remedy that claimants most want: an apology, correction or right to reply. Only in the case of the most serious and/or most damaging libels would we continue to see High Court trials.”
They said that their proposals would require legislative intervention, but little institutional change because “what would be necessary is already – essentially – in place”.
Their paper, ‘Reframing Libel: taking (all) rights seriously and where it leads’ will be made available as part of a set of working documents published by the Centre for Law, Justice and Journalism. Its abstract is reproduced below:
In preparing this paper, we have returned to first principles and re-evaluated fundamental aspects of libel law, its purposes, its substance, and its processes. Our thinking has been informed by, first, philosophical understandings of democracy and the public sphere and in particular the role of freedom of speech and of the media therein, and secondly, the social psychology of reputation and privacy. By doing so, we are able to ground many of the proposals for reform made previously by Index on Censorship, English PEN, Lord Lester and others. We do so, however, not through the prism of an over-weaned emphasis on freedom of expression, but rather by triangulating the rights and interests of claimants, defendants and the wider public. Ultimately, we recommend a coherent set of significant substantive and procedural reforms that if enacted would enhance access to justice and reduce costs for all but the most serious and/or most damaging libels.
A slideshow of their presentation at the Reframing Libel conference can be viewed at this link.
Judith Townend is a MPhil/PhD research student at the Centre for Law, Justice and Journalism, City University London. She blogs at http://meejalaw.com and is @jtownend on Twitter.