If you Google “Lawyers for Media Standards”, this is the first entry you will see. It is an article on the Guardian website (by Roy Greenslade) which only served to reinforce the reasons for setting up the group.
Lawyers for Media Standards (“LMS”) was formed just one year ago in response to concerns at the one sided media reporting of the so called “debate” about libel reform and in particular the issue of costs and success fees in CFA cases.
It appeared to a number of libel lawyers that the media was not airing any other views, only those in favour of reform. Indeed, some lawyers felt that some of the reformers would only be content with the total abolition of libel laws.
LMS was formed as the previous Lord Chancellor and Justice Secretary, Jack Straw, was seeking to kill off CFAs in libel cases. Straw’s planned Statutory Instrument sought to reduce success fees in libel cases from the permitted maximum 100% to just 10%.
In proposing this measure, the previous Government (in the run up to a general election) chose to ignore its own statutory guidelines on consultation and rush the Statutory Instrument through prior to the election.
This was a cynical move by a tired Government hoping to curry favour with the powerful media organisations who had been behind a campaign (running for some years) complaining about the “chilling effect” of libel claims upon freedom of speech.
Of course, the so called “chilling effect” is an important aspect of libel law. The law provides a remedy for those wrongly defamed where the defendant is unable to establish one of the many defences available which include absolute and qualified privilege, truth, consent, honest comment and the “Reynolds” defence, or responsible journalism.
So in that sense, defamation laws do have a chilling effect on freedom of speech, and rightly so.
Only days ago, Nick Clegg made an announcement which makes it clear that the coalition government is also following the media campaign line on libel reforms and costs reforms, which will favour the press and will damage the individual’s access to the law.
The advocates of libel reform and costs reform have a unique position. They are, on the whole, the individuals and corporations largely responsible for reporting news. They have a monopoly on reporting the reform debate, and an obvious conflict.
Who are they?
LMS is an incorporated association, with a membership of solicitors, barristers and academics in the media field, which aims to promote access to justice and a fair legal balance in publication proceedings. Its members regularly act both for claimants and defendants, sometimes privately paid and sometimes on a CFA basis.
What have they done?
LMS was formed with the general election looming and a Ministry of Justice intent on pushing through costs reforms on an urgent basis. Our primary task was to seek to oppose the proposed statutory instrument and this included a potential action for judicial review. It was the view of LMS members that there was no factual evidence to support the consultation statements that
- the vast majority of defamation claims succeed;
- the more expensive cases tend to be funded under a CFA;
- 100% success fees had become the norm
In fact a number of respondents to the consultation had submitted evidence which cast considerable doubt on the material on which these statements were based. In particular
- the success rate of defamation claims (between 2005-2009) was considerably lower than 100% – actually closer to 70%.
- a number of respondents challenged the assumption that 100% success fees were routinely applied. Both barristers and solicitors submitted evidence that the success fees that they had in fact recovered were considerably lower.
- a number of respondents indicated that a 10% maximum success fee was equivalent to abolishing CFAs in defamation cases because with success fees at that level CFAs would no longer be economically viable.
We argued that the measure was unlawful because the consultation process was unfair and inadequate, the period was too short and no proper account was taken of the evidence provided at the consultation stage.
Major concerns were the denial of access to justice and damage to the public interest resulting from the publication of false information which (in the absence of CFAs) would be less likely to be subject to legal challenge.
The Statutory Instrument was eventually withdrawn just before the election, after LMS threatened judicial review and in the face of criticism by the Law Society, Bar Council, senior judges and Lords and other media lawyers.
LMS made a freedom of information request to the MOJ last year asking for details of all meetings held between the MOJ and media organisations and other third parties in the preceeding two years to discuss reform of libel and privacy laws.
The Government response ? “…… in this instance the balance of the public interest test falls in favour of withholding this information”.
Having requested that the present Government take a more measured approach to libel law and costs reforms, LMS will engage with the Government consultations to try to ensure that any further proposals for reform are based on evidence, rather than to simply appease the media campaign.
Independent reports are being sought from experts and academics to ensure that relevant evidence and statistics are gathered and put before the Ministry of Justice.
On the matter of costs reforms, there is some urgency, as the Government’s most recent consultation requires submissions to be completed by February 14.
Reforms of libel law generally are being considered by the Government and a bill is being drafted. LMS will seek to ensure that all relevant views are submitted in response to the proposed Libel Reform bill.
The year has started with the usual flow of pro reform press articles, very few discussing the excesses of the press and the appalling reporting of some recent high profile cases (in fairness to Roy Greenslade, he has been the exception). We are in for another difficult year, trying to put some balance into the debate, trying to replace much rehearsed myths with real evidence; and to influence reform.
LMS is a new group and is funded only by subscriptions from new members. We need new members and help in compiling the evidence and data needed to respond to Government consultations.
If you would like to join LMS or to provide evidence or data for Government consultations, please contact Steven Heffer. E-mail: firstname.lastname@example.org. Tel: 020 7468 7211.