The Government’s draft Defamation Bill has now been published following what began as the fevered demands of newspaper editorials and then morphed into seemingly endless debates between libel lawyers on either side of the barbed-wire fence. Whose interests should it serve? This debate struggled to maintain its momentum in 2011. Following the comments of the draft bill’s principal architect Lord Lester in the Times on the morning before publication, that the current law was “disgraceful” and that it is used by “the rich and their lawyers to silence their critics”, the fears of those mythical lawyers of the rich were renewed as was the hopeful anticipation of the publishers.
For the sake of clarity it is worth pointing out that “the rich” Lord Lester is referring to are the rich who complain of being defamed, not the rich newspaper proprietors.
The reality is an anticlimax and begs the question: does anybody benefit from the draft bill as it stands? Conceivably, a foreign publisher facing the furious complaint of its also foreign (meaning not based UK/EU/Lugano Convention State) victim, would be less likely to fear a claim in the UK. The bill invites them to conduct their battles elsewhere even though recent statistics and common-sense tell us that they generally need no such invitation. Additionally those who publish on websites may be relieved that they are unlikely to be sued in libel more than one year after the article is first published, as is currently the law with printed publication.
This is all well and good but it is hardly the central battleground between free-speech and reputation. The defences to libel claims that occupy the second sub-heading to the bill are re-branded but otherwise substantially the same as the current law. They are liable to face similar arguments as currently bog-down many libel actions but possibly more so in the period whereby lawyers seek to gain advantages for their clients from the move from common-law to statute. In doing so it is the poor (even if within Lester’s definition of rich) clients that will face the financial burden.
And here we come to the real problem with libel actions: their absurd cost, complexity and the consequences where there is an inequality of arms. It may be that a solution to these thorny problems arises from consultation but on the evidence of the draft Bill they are not the Government’s priority. Do the benefits of what is currently in the bill justify the risks in upsetting the status-quo? I fear Lord Lester will find that the rich and their lawyers will continue to use the law to silence their critics. The fact is that a publisher is currently well served by the defences available to him/her/it but it is the deployment of these defences, other than for the well practiced media defendants, that makes resisting a well-armed and ambitious complainant so dispiriting. It will remain so, just as it will remain such a daunting prospect to seek redress from a national newspaper following a libel.
Perhaps it is the current media climate whereby the right to free speech has been seen to have been betrayed so spectacularly by the methods of the News of the World that makes the proposed reform of libel law seem so irrelevant, even inappropriate. Priority has been given to applying sticking-plasters to libel law when urgent surgery is needed to regulate a tabloid newspaper industry that has been shown to have no regard for privacy or the criminal law. Defamation is the least of our problems.