Yesterday I published a new government amendment to the Defamation Bill which will strengthen the “serious harm” test already in the bill to make it more difficult for corporations to sue for libel. This new amendment makes it clear that a body trading for profit will only satisfy the serious harm test if it is able to show that the statement complained of has caused or is likely to case the body serious financial loss. This is almost identical to the original clause Anthony Lester proposed in his private members bill. This will make it clear that bodies trading for profit must have suffered, or be likely to suffer, serious financial loss in order to be able to establish a claim. This is a very significant change that Liberal Democrats have been able to achieve.
As the bill goes through its final stages in Parliament, it is worth remembering how this bill came about and the journey we’ve been on as a party to achieve the important reforms to the laws of libel encapsulated in this bill.
When the Libel Reform Campaign was launched in 2009, only the Liberal Democrats backed change. Now the cause has cross-party support. It was Liberal Democrats who ensured that there was a commitment in the Coalition Agreement to review the law of libel to protect free speech. When Anthony Lester introduced his Private Members Bill on defamation in the summer of 2010, I committed to taking his bill away and working to ensure that it returned as a government bill. Following discusisons within the MoJ with my coalition colleagues, I brought forward a government consultation and draft bill in 2011. The bill was then announced in the Queen’s speech last May.
Freedom of expression is the cornerstone of our democracy. In an open society, people should be at liberty to debate a subject without fear or favour, whether the matter is political, scientific, academic, religious, or anything else. However freedom of speech does not mean that people should be able to ride roughshod over the reputation of others without regard to the facts. Careers and indeed lives can be destroyed by false allegations that are incapable of being properly answered.
The issue for our defamation laws is ultimately one of striking the right balance between the protection of freedom of expression on the one hand, and protection of reputation on the other.
It is this balance that I have been working hard to achieve throughout the last two years, since Anthony introduced his Private Members Bill. It is a difficult balance to achieve, and I have been careful throughout this process not to tip it too much in one direction or the other. I have worked closely with organisations on both sides of the debate throughout this process, and I have listened carefully to the views of MPs and Peers as the bill has been debated in Parliament.
For example, during the Lords stages of the bill I agreed with suggestions by Anthony Lester and the Opposition to re-word the public interest defence in Clause 4; I agreed to a change to the defence for website operators to be defeated if the operator acts “with malice”; and I confirmed for the avoidance of doubt that peer-related articles in scientific and academic journals that are published only in electronic form are protected in the same way as they would be in print form.
All of this has been the product of a process of discussion and bargaining within Government with my Conservative colleagues. On this bill as on others, we got some of the things that we wanted and the Conservatives got some of the things that they wanted. In the negotiations which preceded the publication of the draft Defamation bill and the substantive Bill, we were unable to persuade the Conservatives to sign up to a change in the law for corporations. However I was confident that other changes we were making in the bill would make it harder for corporate or wealthy individual claimants to intimidate defendants with limited resources, without removing their ability to seek redress where their reputation is genuinely damaged. The new test of serious harm, for example, provides an effective deterrent to trivial and vexation claims – regardless of who the claimant is. And it is important to bear in mind the fact that corporations are already unable to claim damages for certain types of harm.
In addition, the Civil Justice Council is currently looking at how costs protection measures might work in defamation cases to help address concerns relating to cases involving an inequality of arms. This will ensure that claimants and defendants of limited means are not deterred from bringing or defending defamation claims where the other party is a corporation, newspaper or individual with substantially greater resources.
There have been further discussions in the last week, and so I have now tabled the new government amendment relating to serious financial harm for corporations. “Serious” financial loss is a very strong test, and as it is explicitly linked to the serious harm test, this raises the bar for bringing a claim in any defamation action.
Liberal Democrats have every reason to be proud of the Defamation Bill. What started as a debate at Party Conference became a manifesto commitment. That commitment became a draft Bill, which itself went through every stage of parliamentary scrutiny. As we reach the end of the process there has been need to compromise. As Nick Clegg so often reminds the Party, we do not have the votes in either House to impose our will. No-one suggests, however, that the Defamation Bill is anything other than a major step forward in protecting freedom of expression in this country and a significant protection against intimidation by the rich and the powerful. It will give protections to our academic community and deter libel tourism. Not every libel reform campaigner will have got everything they wanted; but those who value free speech can be satisfied with a job well done.
* Tom McNally is Leader of the Liberal Democrats in the House of Lords and a Minister of State for Justice