UK libel reform – a view from Australia – Tom Westbrook

31 03 2011

The UK Secretary of State for Justice, Kenneth Clarke recently released his government’s Draft Defamation Bill.

The draft bill, which is accompanied by a consultation paper, proposes significant reforms to English (and Welsh) libel law that would make it more difficult to sue for defamation.

Such reforms have been in the offing since last year’s election, when all three major parties promised action on libel laws.

A promise to “review libel laws to protect freedom of speech” is in the Liberal Democrat-Conservative program for government drawn up last May.

According to the Libel Reform Campaign the draft bill is the first attempt to substantially change the law since the Libel Act 1843.

The Libel Reform Campaign, which grew out of an English PEN and Index on Censorship report Free Speech is Not For Sale, has for the past 18 months been pushing for an overhaul of an “archaic” libel law regime that is “stacked in favour of claimants”.

The draft bill adopts about half of their proposals.

It introduces a new requirement that statements must cause “substantial harm” in order for them to be defamatory.

It also seeks to curtail “libel shopping” by stipulating that courts would need to be satisfied that England and Wales is the most appropriate jurisdiction to hear cases where the defendant is not domiciled in the UK or European Union.

The draft bill provides for new statutory defences of honest opinion and truth, which would replace the existing common law defences of fair comment and justification respectively.

A statutory defence of responsible publication on matters of public interest is also proposed.

The circumstances under which the defences of absolute and qualified privilege apply are extended in the draft bill (to include academic conferences, for example) and the presumption in favour of a jury trial is removed in an attempt to reduce the cost of defamation proceedings.

Unsurprisingly, the British media have welcomed the reform package and the release of the draft bill has generated some timely positive press for a government under pressure over unpopular budget cuts.

The Guardian, which has long been editorialising in favour of libel reform, has carried reports broadly supportive of the draft bill.

Columnist Roy Greenslade (pic) greeted it with three cheers, lauding the inclusion of a statutory public interest defence, which he said will “strengthen the position of people who raise concerns about malpractice or dangerous products.”

In the same newspaper, Joshua Rozenberg and Siobhain Butterworth described the draft bill as a step in the right direction and a triumph respectively, though they were each critical that it did not go far enough.

Rozenberg praised the proposed requirement that “substantial harm” must be caused for a statement to be defamatory as “an excellent reform and one that will reduce the scope for trivial and unfounded cases.” Butterworth concurred.

Both writers argued in favour of the new single publication rule, which would bury the 160 year old common law authority, Duke of Brunswick v Harmer, that is the basis for the legal interpretation of every download of an online article as a new publication.

In that case, the good Duke waited 17 years before ordering a back issue of the offending paper and then bringing an action on the basis of that publication.

Both Rozenberg and Butterworth are concerned that the draft bill does not limit corporations’ right to sue, as the Liberal Democrats had initially promised to do before the election.

Rozenberg also criticised the draft bill because the truth defence provision does not reverse the burden of proof and require claimants to prove allegedly defamatory statements to be false.

Presently successful defendants must prove their statements to be true.

Rozenberg and Butterworth disagreed in their view of the proposal to remove the presumption in favour of jury trials, with Butterworth opposing it on the grounds that “the question of whether someone’s reputation has been damaged and what that is worth should be left to ordinary people equipped with common sense.”

Peter Preston agreed with her in The Observer.

The Guardian also published a lofty manifesto by Nick Clegg (pic) in defence of the draft bill. He said:

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.”

Elsewhere the draft bill was damned with faint praise.

The Libel Reform Campaign’s response to the draft bill can be read here. They welcomed it, but do not think it goes far enough.

Spokesman Evan Harris said that the ability of corporations to sue to protect their reputations still needs “radical restriction”.

He also argued that the draft bill does not offer enough protection to secondary publishers (such as web hosts and internet service providers) and nor does it do enough to address the high cost of defamation proceedings.

The Independent revisited a handful of “embarrassing” cases of “libel tourism” and legal bullying and supported efforts to stamp out both practices.

The Evening Standard said that the “long overdue” reforms were needed to redress the “chilling effect” that the present laws have had on investigative journalism.

The paper cited the case of journalist Simon Singh who spent £200,000 defending himself against the British Chiropractors Association.

In The Telegraph, Tom Whitehead wrote in support of the “substantial harm” and the anti “tourism” provisions.

The paper’s pro-reform editorial said that:

“The Government is to be congratulated for recognising the need for what would be the first wholesale reform of our libel laws since 1843.  It now needs to make good these fine ambitions by guaranteeing parliamentary time for the legislation.”

Media defence lawyer David Allen Green offered his considered support for the draft bill in New Statesman.

He explained that by making it more difficult to threaten legal proceedings the “substantial harm” requirement can effectively combat the “chilling” effect of the present laws:

Some established claimant lawyers are saying this [new requirement] will lead to more expense because of futile debates about whether there is substantial harm or not.

I do not think this will be the case. It is more likely that the same lawyers will have to explain to their clients why claims cannot now be threatened because of this new requirement.”

Green (pic) also thinks that removing the presumption in favour of jury trials is a good thing:

The mere fact of defamation cases having an eventual jury trial makes pre-trial proceedings more costly and elaborate than they need to be. Bringing them to an end will have a beneficial effect on libel litigation generally.”

The draft bill could be better” he adds.

For example, one hopes the consultation period will address issues such as the capability of corporations to sue for libel. The issue of costs also have to be dealt with”.

Nevertheless, Green concludes that “this draft libel bill is a great step forward.”

Not everybody is so impressed.

The Times quoted Rod Dadak, head of defamation at Lewis Silkin, as saying that the draft bill “is nothing but a sop to the media and does not do enough to protect the defamed.”

The newspaper itself described the draft bill as a “blow to the rich and powerful” and ran a piece defending it by the Liberal Democrat peer Lord Lester, who had a major role in drafting the bill.

Lester said “the main beneficiaries of the current state of the law are the rich and powerful and their lawyers, who will mount a rearguard action against reform. The main beneficiaries of reform are the public.”

Lawyer Dominic Crossley hit back on the Inforrm blog, where he said that “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.”

Crossley said that the bill is an “anti-climax” which will do little to address 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” he said.

Also on the Inforrm blog, academic Daith Mac Sthigh called the draft bill a “missed opportunity” because it is merely “a clarification of the law rather than a serious project to assess the form and purpose of defamation law in the UK”.

He is in favour of a whole of government approach that will apparently deliver such an assessment.

He added that “The long-awaited discussion of internet defamation (except single publication) leaves much to be desired.”

Fellow academic Alastair Mullis (pic) who is Head of the Law School at the University of East Anglia, found the draft bill a disappointment too.

His detailed response to the draft bill is published in two parts, here and here, on the Inforrm blog.

He says the draft bill “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.”

Mullis disagrees with David Allen Green and does see the “substantive harm” provision as a red rag for more expensive legal battles over the existence of harm.

He says there is “little hard evidence” that libel tourism is a serious problem and he opposes the inclusion of a statutory honest opinion defence on the grounds that it “goes too far in favour of freedom of expression.”

Mullis is critical of the single publication rule and argues that in light of the longevity of potentially defamatory material on the internet, the rule “does not allow for an appropriate balance to be struck betweenrights to communicative freedom and competing rights to privacy and reputation.”

Some of Mullis’ views echo those of Inforrm editorial team member Hugh Tomlinson QC, whose November 2010 paper was recently republished by the Gazette.

Tomlinson, who was writing before the release of the draft bill, “is not persuaded by the case for reform to the substantive rules of libel law”.

He wants procedural reform and cost control.

Across the Atlantic, The New York Times has an entirely different take:

The proposed barrier against jurisdiction is significant and a welcome change.

In most other respects, the bill is not nearly as protective of speech as American law, and the burden remains on the defendant.

Still, the bill has the potential to bury London’s deserved reputation as the world’s libel capital. It deserves the measured praise it is drawing.

Reporter: Tom Westbrook

The Gazette of Law and Journalism is Australia’s leading online media law journal.  It has, since 1986, been covering court cases, legislation and policy issues that affect the media.  It has a comprehensive database of materials on defamation, contempt, suppression, protection of sources, freedom of information and privacy.


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