The Government’s Defamation Bill was published on Tuesday 15th March 2011 and on the same day the Deputy Prime Minister took the opportunity, by way of media introduction of the new Bill, to issue a rallying call to freedom of speech: ‘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’. Stirring words indeed. In the light of this language, it would not have been surprising if the Bill had offered a radical re-shifting of the law in favour of freedom of expression. That it does not do so is welcome.

However, though the changes proposed in the Bill are, for the most part, modest, my real disappointment is that there seems, thus far at least, to have been no real attempt to engage with the problems that English libel law and practice raise and to contemplate new and radical proposals that, while providing protection for free speech, also recognise the value of reputation and the critical importance of access to justice. In stating my disappointment, I may justifiably be accused of being self-serving because Andrew Scott and I have developed a series of proposals (‘Reframing libel – taking all rights seriously and where it leads us’ ) that we believe do address the real problems of the existing law and practice. The Bill, however, simply tinkers with the existing system making generally marginal shifts in the law.

That there are some helpful clarifications is not in doubt, but these will no doubt be tested in the courts at considerable cost. It will be lawyers who will gain from this, not NGOs, scientists and investigative journalists legitimately trying to discuss matters of real public importance. Still less will it do anything to create proper access to justice for the relatively impecunious claimant wrongfully traduced in a national newspaper. As one leading practitioner put it to me recently, the effect of the Bill will be ‘to improve my pension’. This was said with sadness rather than glee.

Though I disagree with many of the suggestions made by Pen and Index on Censorship in ‘Free Speech is not for sale’, they have done a great service in raising awareness of the need to look seriously at the law and practice of libel. We have a real opportunity to create a modern law that properly triangulates the rights and interests of claimants, defendants and the wider public. This Bill does not do that. It is to be hoped that during the consultation period that has now begun a serious evaluation will be made of the alternatives on offer.

Clause 1 – Substantial harm

Clause 1 provides that a statement is not defamatory unless its publication has caused or is likely to cause substantial harm to the reputation of the claimant. The effect of the clause is of course to impose a threshold level of seriousness that must be met before a statement will be treated as being defamatory.

Comment

Clearly trivial claims should be discouraged and the Bill may have some marginal effect is this regard. There might also be said to be some merit in making clear, as the Bill does, that the burden lies on the claimant to establish that the claim is not trivial. However, in terms of result the clause is unlikely to make much difference and it may well have the undesirable effect of increasing the complexity and cost of proceedings. First, it is doubtful whether this provision adds much to the existing law. In Thornton v Telegraph Media Group Ltd Tugendhat J had stated that whatever definition of what is defamatory was adopted, ‘it must include a qualification or threshold of seriousness, so as to exclude trivial claims’. So too, there is the very real potential for trivial claims to be struck under Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75, [2005] QB 946 for abuse of process. Importantly, this is a power that has been used and at least 10 cases that were concluded in court last year were struck out or stayed. Will the new provision, in the light of the above, have a significant impact on the number of cases brought or threatened? Probably not.

Second, and of real concern, it seems likely that, in practice, defendants will seek to challenge every libel claim on a “clause 1 basis” – with “mini trials” taking place on the issue of “substantial harm” at the outset of every action.  The meaning of ‘substantial harm’ will have to be tested and claimants will be forced to offer up evidence at an early stage of how the harm they have suffered is substantial. Even if the provision does have the effect of providing ‘extra certainty’ and discouraging trivial claims that would have been brought notwithstanding the existing common law powers, it is likely to come at the cost of more complicated and expensive litigation.

Clause 2 – Responsible publication of matter of public interest

Clause 2 creates a new statutory defence of responsible publication on matter of public interest. The clause is based on the existing common law Reynolds defence but a statutory definition was thought helpful to make the law ‘clearer’ and more ‘readily applicable outside the context of mainstream journalism.’ A defence will exist under clause 2 where the defendant shows that ‘(a) the statement complained of is, or forms part of, a statement on a matter of public interest; and (b) the defendant acted responsibly in publishing the statement complained of.’  ‘Public interest’ is not defined on the grounds that the concept is ‘well established’ in English law and any attempt to define it in a statute would be ‘fraught with difficulty’. So far as the second part of the test is concerned, subsection (2) sets out a non-exhaustive list of matters to which the courts must have regard in determining whether a defendant acted responsibly in publishing a statement. These are broadly based on the factors set out in Lord Nicholls’ speech in Reynolds ([2001] 2 AC 127, at 205). Subsection (3) of the clause is intended to encapsulate the existing reportage defence and provides that ‘ A defendant is to be treated as having acted responsibly in publishing a statement if the statement was published as part of an accurate and impartial account of a dispute between the claimant and another person.

Comment

The responsible publication defence provided for in clause 2 is an improvement on Lord Lester’s Bill though surprisingly, particularly in the light of the express abolition of the common law defences of truth and fair comment, the existing Reynolds defence is not abolished. As will be recalled, Lord Lester’s Bill, while ostensibly based on Reynolds, omitted reference in the matters to be considered in determining whether a publication was responsible to the source of the story, whether the article contained the gist of the claimant’s side of the story, the status of the information and the tone of the article. The effect was, arguably, to privilege vituperative comment based on erroneous facts that did not include any explanation offered by the claimant (see Mullis and Scott, Lord Lester’s Defamation Bill 2010 – a distorted view of the public interest? (2011) 16(1) Communications Law 6). The government Bill rows back from this approach and requires the court to consider ‘whether the defendant sought the claimant’s views on the statement before publishing it and whether the publication included an account of any views the claimant expressed’ (subsection 2(e)). The status of the information, though not specifically mentioned is presumably to be taken into account under ‘(a) the nature of the publication and its context’. So too, the tone of the statement is expressly identified as a relevant matter in subsection (2)(h) ‘including whether it draws appropriate distinctions between suspicions, opinions, allegations and proven facts.’ Sources, and their reliability, are not expressly mentioned, and that is a concern. Presumably the reliability of sources would be relevant under subsection (2)(d) (‘the information the defendant had before publishing the statement and what the defendant knew about the reliability of that information’) and / or subsection (2)(f) (‘whether the defendant took any other steps to verify the accuracy of the statement’) but it would be better if the sources of the information and their reliability was identified specifically. Sources apart, the consequence of these changes is that the new provision is, at least in this respect, in very large part simply a clear and sensibly constructed statutory restatement of Reynolds.

While the new clause certainly does not create the radical public interest defence for which some libel reformers had been calling, a number of concerns remain. First, the commentary to the bill states in paragraph 13 that subsection (2) covers statements of fact and opinion (including inferences). While the Court of Appeal in BCA v Singh had regarded it as an open question whether Reynolds applies to opinion, Lords Nicholls and Hobhouse had said in Reynolds ([2001] 2 AC 127, at 201 and 193-5 per Lord Nicholls and 237-8 per Lord Hobhouse.) that the expression of opinion was protected, if at all by, by fair comment. A division between fact and comment makes sense because where a defamatory opinion is published, readers will recognise it as such and either agree, discount it or reach their own different opinion. That is not to say that opinion should never be actionable just that the basis on which exemption from liability for defamatory opinion should be given should be different from liability for defamatory fact. The capacity of defamatory opinion to mislead is different from that of an inaccurate fact. Where false facts are concerned, readers are unlikely to have any means for determining their truth or otherwise. Thus in respect of false statements of fact protection should only be afforded to the defendant if, for reasons of public policy, the occasion or nature of the publication demands it. Where defamatory opinion is concerned, provided the facts on which the opinion is based are true, the possibility of reasonable readers being misled does not arise. The reason for sanctioning publication of a defamatory opinion must therefore be different. The problem with the Bill is that in bringing opinion within the defence, the possibility opens up of seriously misleading and unjustified opinions being published that would not be defensible under fair comment becoming defensible under Reynolds. Thus, if the defendant ‘responsibly’ invents facts that turn out to be untrue and then comments on those facts, he would have a defence under Reynolds but not fair comment. The very risk that cannot happen with the fair comment defence (reasonable readers being misled) is thereby allowed to happen. This is not desirable.

Subsection (3) of the government Bill seeks to codify the existing law on reportage. It does this rather better than the Lester Bill which in Clause 1(5) had provided a defence where a publication reports accurately and impartially on a pre-existing matter of public interest. In so doing the Lester Bill substantially extended the existing law on reportage multiplying the difficulties that already exist in reconciling reportage with the repetition rule. Subsection (3) of the Bill in essence restates the current law in providing that a defendant is ‘to be treated as having acted responsibly in publishing a statement if the statement was published as part of an accurate and impartial account of a dispute between the claimant and another person.’ While the new clause is an improvement on Lord Lester’s, the existing common law defence is an unsatisfactory one (interestingly it has not been uniformly adopted in the United States) sitting uneasily as it does with the repetition rule. It is not sensible to privilege the publication of material which the writer believes to be untrue simply because the matter being written about is of public interest and the writer reports what has been said accurately and impartially. Rather than codification, this rule should have been abolished.

The remaining clauses of the draft bill will be considered in Part 2 of this post, to be published tomorrow.

Professor Alastair Mullis is Head of the Law School at the University of East Anglia and a general editor of Carter-Ruck on Libel and Privacy, 6th Edn, 2010.

Author’s note: with many thanks to Benjamin Pell and Andrew Scott for comments. The errors are all mine.