It was inevitable that an unpopular Government whose competence is a matter of serious public debate would try and gain some publicity advantage from a Defamation Bill. After all, for entirely unsurprising reasons, this is very popular in the media. Deputy Prime Minister Nick Clegg sought to capitalise on this in an article published on the “Guardian” website. The title tells us that the coalition “will end the libel farce” and that the bill “will let the press be free“. Almost everything said by Mr Clegg in this article is wrong or misleading. The article provides a good illustration of the way in which an important debate – about defamation, reputation and free speech – has become debased by inaccuracy and empty rhetoric. We will confine ourselves to just five examples.
First, the article says:
“London is the number one destination for libel tourism, where foreign claimants bring cases against foreign defendants to our courts – even when the connection with England is tenuous at best. It is a farce that has prompted Barack Obama to legislate to protect his citizens from rulings in our courts“.
In fact, as we have often pointed out on this blog, there are very few claims brought by “libel tourists” in the English Courts (see our post here) and London is a “libel backwater” – with one of the lowest rates of libel claims in Europe (see here) and a substantially lower level of claims than, say, Australia (see our post on New South Wales). English libel laws are broadly similar to those in most countries in the world – with the exception of the United States. Congress (not Barack Obama) legislated to protect US exceptionalism – to protect US citizens against rulings from the courts of England, Canada, Jamaica, Australia … and everywhere else. This reflects badly not on English libel law but on the US Congress – which believes (in this, as in other areas) that its citizens should be free to break local laws with impunity.
Second, according to the article:
“it is ordinary people who really suffer: protecting their interests means ensuring corruption can be unearthed and charlatans exposed. Of course, individual citizens must be able to protect their reputations from false and damaging claims, and we cannot allow companies to be the victims of damaging, untrue and malicious statements.
It is ordinary people who suffer from the excesses of the mainstream media – whose appetite for salacious stories is unending and mercifully “chilled” by the law of libel which make most newspapers think twice before publishing damaging allegations. Responsible reporting about “corruption” and “charlatans” is already protected by the law of libel. The Bill does nothing at all to enhance the protection for “individual citizens” – quite the contrary, its aim is to protect defamers not those who are defamed. It says a lot about defences, nothing about remedies.
Thirdly, the article says:
“We are levelling the playing field, creating new protections for those seeking to speak out – including, crucially, a new statutory “public interest” defence for use in libel cases“.
The so-called “new statutory ‘public interest’ defence” is simply a repetition of the old “non-statutory” public interest defence. Far from being “crucial”, in practice it will make no difference – but it will take litigation (and a lot of legal costs) to establish this.
Fourth, the article says:
“We are addressing libel tourism by tightening the rules so that it is much harder to bring overseas claims to our courts when there is little connection to the UK. If such a link can’t be demonstrated our judges will simply turn the case away.
The only “libel tourist” identified in 2010 was, in fact, “turned away” by the judges under the existing law. The Bill means that legislative time is devoted to a non-existent problem.
Fifth, the article says:
“These reforms will create libel laws that will be a foundation for free speech, instead of an international embarrassment. In a modern, liberal and open society dissent should be celebrated, and debate should be raucous. The press should be free – and in our society, they will be“.
Most practitioners believe that the Bill will have little practical impact – save that new laws mean new litigation and more legal costs. The press should be free but it should also be responsible. Dissent and raucous debate is not prevented by the law of libel, its target is false and damaging allegation.
The comments on the “Guardian” website suggest that Mr Clegg is very unpopular indeed – but many readers appear to agree with his “analysis” of libel reform (although “WheatfromChaff” draws attention to a number of the points above, and some more besides).
The proponents of unrestricted free speech often argue that the “market place of ideas” will separate the wheat from the chaff. The tired regurgitation of error and rhetoric by Mr Clegg supports the contrary view – that those with access to the mass media can distort the terms of the debate.