In a speech on “Civil Liberties” on 7 January 2011 at the Institute of Government, the Deputy Prime Minister, Nick Clegg, set out the Government’s proposals on libel reform. His views on civil liberties and freedom of information appear sensible and balanced. Unfortunately the same cannot be said for his approach to libel reform. He begins by making the proper point that “individual citizens must be able to protect their reputations from false and damaging claims” but implicitly suggests that companies should have less protection on the basis that they should only be protected from “damaging, untrue and malicious statements“.
But he then goes on to repeat the lazy myths of libel tourism:
“Nor should foreign claimants be able to exploit these laws, bringing cases against foreign defendants here to our courts – even if the connection with England is tenuous. It is a farce – and an international embarrassment – that the American Congress has felt it necessary to legislate to protect their citizens from our libel laws“.
As we have pointed out on a number of occasions, the number of “libel tourists” – foreign claimants suing foreign defendants – in the English courts is very low indeed. There appear to have been no such cases in the only year for which a full study was carried out, 2009. What Congress has done is neither a farce or an embarassment but an assertion of US exceptionalism – that its citizens should be exempt from local laws on defamation because those laws are different from its own. This affects not only libel judgments given in England but also judgments in Canada, Australia, France, Germany and almost every other country in the world.
Mr Clegg then goes on to deal with the draft defamation bill to be publish “in the Spring”. He says this
“We intend to provide a new statutory defence for those speaking out in the public interest, whether they be big broadcasters or the humble blogger. And we intend to clarify the law around the existing defences of fair comment, and justification. We believe claimants should not be able to threaten claims on what are essentially trivial grounds. We are going to tackle libel tourism. And we’re going to look at how the law can be updated to better reflect the realities of the internet“.
Readers of this blog will recognise a rehearsal of the main provisions of Lord Lester’s Defamation Bill. There are a number of serious criticisms of these proposals – see, for example, Professor Mullis and Dr Scott’s post “Lord Lester’s Defamation Bill: a distorted view of the public interest?“. We have previously suggested that the bill faces 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“
In a powerful paper delivered at the MBL/Inforrm conference in July 2010, Desmond Browne QC pointed out the perils of “statutory codification” in this area – arguments which have never been addressed by advocates of reform.
There is also a third problem – Lord Lester’s Bill (and, it appears, the Government’s draft) will make no practical difference to the position of the “bloggers, scientists and NGOs” whose actual and perceived difficulties have been the impetus behind the libel reform campaign. For example, Lord Lester’s “responsible publication” defence would be as high a hurdle for defendants as Reynolds qualified privilege. It will be interesting to see whether the Government’s bill addresses this issue but there is, at present, no indication that it will.
Finally, Mr Clegg indicates that the Government is “going to address the high costs of defamation proceedings“. It appears that this will be conducted as part of the implementation of the proposals by Lord Justice Jackson to reform civil litigation funding – and in particular no win no fee arrangements. These proposals will, we believe, lead to the return of serious imbalance between the mainstream media and individual claimants.
Mr Clegg concludes this part of his speech by saying:
“Our aim is to turn English libel laws from an international laughing stock to an international blueprint“.
The starting point is mistaken. The English law of defamation is held in high international legal regard – with its case law respected and taken into account by judges in most common law jurisdictions. Its admirers far outnumber its US inspired critics. There are some areas for reform – problems about costs and “imbalance” between different types of litigants. These need to be addressed in a careful and balanced way. If this is not done libel reform will itself become a “laughing stock”.
INFORRM and the Media Standards Trust are holding an event at Gray’s Inn on Tuesday 11 January 2011. ‘Libel reform: in the public’s interest’ which will be chaired by Baroness Helena Kennedy. The panel includes Sir Charles Gray, Razi Mireskandari, Evan Harris, Zoe Margolis and Kevin Marsh.