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.
Dominic Crossley is a partner at Collyer Bristow LLP
You are right: it is an anticlimax. What’s missing is the requirement for the claimant to go onto the stand, say it is false and be crossexamined. And the need to prove actual substantial damages, not just likely ones. Imagine the lawyers bills to get the case law going to fill all the holes in the working of the Bill.
The law is unclear now and the wealthy do abuse the courts. The problem is the whole obscene costs of court cases. The barristers also get rich or richer defending the interests of the wealthy and this has serious implications for newspapers, journalists and now bloggers and does stifle freedom. A change and clarification of the law is required but this Bill doesn’t seem to do that. It will be expensive for the judicial system to try to make sense of it and set precedents that may be even more confusing and unclear.
If someone who is not knowledgeable publishes some rank comments about someone like a minor celeb the celeb can hire lawyers and do them for £10,000. Does that sound right? I don’t think so! Things ought to be judged on whether or not the person’s reputation is seriously harmed. I mean imagine a topless model who gets called a whore or is said to have been sleeping with lots of guys. Okay, so that’s libel. But on twitter that’s as common as breathing. Forums and twitter, facebook and other social media need to be fully excluded from libel laws. People don’t believe things easily. Rants and flames are just that. Poor people ought not to get fucked over by rich people.