Libel bill comment: A flawed attempt to preserve the future of journalism
The government’s long-awaited libel bill is full of welcome ideas but it isn’t enough to safeguard the future of journalism.
By Ian Dunt
Britain’s libel law is in dire need of reform, a fact well understood by all three main parties at the election. The case of Dr Simon Singh against the British Chiropractic Association, which did more than any other to prompt demands for reform, saw the science writer give up work for two years and spend £100,000 before the court could decide if his words were fact or opinion. Scientists and health experts began to talk of libel as a public health issue, with major multinationals and well-funded alternative medicine bodies attacking anyone who raised questions about their products.
Meanwhile, America passed a law effectively ruling out British libel judgements from having any effect across the Atlantic. With so many claimants coming to the UK for their cases simply because they had a greater chance of winning, US lawmakers thought it was time to defend their writers and journalists. Britain now has a reputation as the place to strangle freedom of speech, rather than promote it.
Public services and government are disproportionately affected by libel, as lack of money and regulatory controls make them easy targets for the media. But corporations and the rich are seeing hardly any scrutiny at all, as media outlets constantly refuse to print any story which might end up in a court battle. Even when they’re certain of their story, many cannot tolerate the court costs involved in proving it.
This has a significant effect on digital media outlets which have always been less well funded than their Fleet Street counterparts. They simply can’t afford a court case, so any contentious story on corporate misdemeanours is often flagged before it’s even written. Media analysts worry that the chilling effect of libel, combined with an internship system which sees only the middle classes get jobs, sum up a toothless and weakened future for the media in an online age.
Ken Clarke’s draft defamation bill was published on Tuesday and will now go for consultation. But how well does it deal with these issues? The answer is, in some cases, very well. The issues of libel tourism and public health are thoroughly addressed in a reassuring manner, for instance, but without major efforts on financial issues the same worries over the future of online journalism remain.
Public health issues have been dealt with in a number of ways. There is considerable evidence in the bill’s wording and its focus that the views of the scientific community were given serious weight when the bill was being created.
A new statutory defence of responsible publication in areas of public interest seems almost tailor-made for cases such as that of Dr Singh. There is already a common law defence in this area, which will be well known to all journalism students – that of Reynolds v Times Newspapers. But most writers and experts see this as having its main bearing on mainstream media outlets, rather than specialist or academic journals.
There will also be a statutory defence of truth, which, usefully, allows that the “imputation” of the statement is “substantially true” – thereby giving publications a little bit of leeway. A fun test for political geeks would be to apply this to Andrew Gilligan’s infamous Today programme report on that sexed-up dossier. Even thought the specifics didn’t hold up, the “substance” of the report did.
This move doesn’t help scientific publications as much as you might think because it’s difficult to actually disprove alternative therapies, for instance. So a second statutory defence, this time for “honest opinion”, has been added. For this to apply the opinion must be one “that an honest person could have held on the basis of a fact which existed at the time”, as well as being in the public interest and an expression of opinion, not fact. That last part is difficult, as the Singh case showed, but it’s hard to think of an alternative to it. The government is open to views as to whether it is “wide enough and sufficiently clear”, suggesting there’s uncertainty about this as it stands.
Finally, the circumstances in which absolute and qualified privilege apply are being expanded. Under the bill, specific provision would be given to protect free and fair reports in academic and scientific conferences by expanding qualified privilege. Some think this might already apply merely by branding these conferences public meetings, but there’s a pressure to just go ahead and offer a specific provision to be clear.
Libel tourism has been dealt with via a two-pronged strategy. Firstly, the government is intending to adopt a clearer approach to European law. Article 2 of the
Brussels Regulation says jurisdiction lies where the defendant is domiciled. Article 5 allows them to be sued in a state where the “harmful event”, in this case publication, occurred. That deals with European cases.
For international cases, clause seven of the bill stipulates that a court does not have jurisdiction to hear and determine a claim unless it is satisfied that, of all the places in which the statement complained of has been published, England and Wales are “clearly the most appropriate”. The most obvious hallmark of appropriateness would be copies published, although presumably there will be others, such as numbers of readers – such things are lawyers’ dreams made of.
So scientists, public health bodies, victims of libel tourism and Britain’s legal reputation all get a good deal from the package. But what does it do to counter the chilling effect of libel, particularly on news organisations which don’t have the money to defend themselves in court? While it is quite clear that this is an issue which plays on the minds of lawmakers, the proposals on offer fall short of significant change.
Removing the presumption in favour of jury trial will make some difference. Very few libel cases go to juries, but the possibility of it doing so allows many issues which could potentially be resolved at an early stage to drag on. The retention of the right to trial by jury adds significantly to cost, as wealthy claimants use this to prolong the legal bouts with all the relevant expenses that entails.
There are also attempts to reduce the court procedures needed to resolve preliminary issues, via a formal new procedure in the high court. The aim would be to clarify issues in dispute and the defences available, which might help encourage the parties to settle.
Another proposal would see the claimant have to prove that actual harm came to them due to the writing in question. That sounds obvious, but under the current law, the claimant must merely prove that the words in question would lower their reputation in the estimation of a “right thinking” (got to love that phrase) member of society. Actually showing damage was unnecessary – in fact the defendant had to prove they hadn’t><</i> defamed the claimant. Sorting that should cut down some of the trivial cases that go to court.
Internet sites breathed a collective sigh of relief that the single publication rule was being introduced. It is a longstanding principle of the civil law that each publication of
defamatory material gives rise to a separate cause of action. In the case of the internet, this amounted to a potential new libel cases every time someone accessed the web page in question. It was a laughable and overly-literal interpretation of the law, which had no bearing on reality. Getting rid of it saves internet sites from the prospect of effectively limitless payments if they’re shown to have defamed someone.
Websites will also be pleased with government efforts to give greater protection to “secondary publishers”. Many sites are reticent about allowing comments under articles or chat rooms due to fears of a libel claim. This stifles creativity on the internet and doesn’t feel like natural justice. Sites such as Google News will also have an easier time now. It’s a change that would recognise the way the internet operates, especially as more sites become news aggregators. Right now, the government is still searching for views on this issue, but it looks likely to feature in the final bill.
Another issue up for further discussion is whether corporations should be restricted from libel actions. This relates to the “inequality of arms” in many libel proceedings, allowing rich companies to threaten and cajole a small media company with the mere prospect of trial.
Again, we’ll have to see the final bill to discover whether that suggestion is realised, but even if it is, it will not be enough to address the basic fact of capitalism: some organisations have more money than others, and they will use that resource threateningly in a legal context.
One must sympathise with those formulating the draft legislation. This is not an easy issue to address. But certainly none of the policies contained in the draft defamation bill will be enough to ensure that the digital media is as aggressive towards the private sector as it is towards the public sector and the government. Streamlining and speeding up the court process itself is useless if organisations can’t afford to even think about trial. That’s the point when the chilling effect happens, because it makes the truth of a story irrelevant when considering whether to defend it. And until that’s addressed, we still have good reason to be worried about the future of journalism.
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