Evan Harris writes… The Draft Libel Bill – A good start, but much still to play for

Yesterday the Government published its draft Defamation Bill. This consisted not only of draft clauses but also a formal consultation on some key issues not included (yet).

The Liberal Democrats have been at the forefront of the campaign to reform our libel laws as Nick Clegg points out in his Guardian piece yesterday. I convened the parliamentary wing of the Libel Reform Campaign in 2008/9, working with Sense About Science, Index on Censorship and English PEN. We achieved our aims of getting manifesto commitments from all three main parties before the 2010 Election. This campaign was founded on cases like that of Simon Singh (v British Chiropractors’ Association), Ben Goldacre (v Mathias Rath), Peter Wilmshurst (v NTM Ltd) and Henrik Thomsen (v General Electric Healthcare). In addition there were a spate of stories about libel tourism with wealthy, powerful oligarchs suing foreign-based defendants in London.

Last week the Libel Reform Campaign issued our blueprint for libel reform, listing 10 ingredients for proper reform of libel laws. An initial analysis of the draft Bill shows that about 6 out of 10 of these have been delivered. But in four critical areas, two of which are explicit Lib Dem policy, the Government is not yet making the right recommendations.

The areas that are pretty satisfactory are as follows:

  1. Raising the threshold of presumed harm to reputation before a libel action can be launched (clause 1 of the draft Bill).
  2. Converting the unwieldy “Reynolds” (responsible journalism) common law defence into an effective statutory public interest defence for all publishers (clause 2).
  3. A clearer statutory defence of truth, or justification (clause 3).
  4. A broader statutory defence of honest opinion (‘fair comment’ renamed, clause 4).
  5. A single publication rule preventing each hit on a website being counted as a fresh publication for the purposes of the year long limitation period for bringing claims (clause 6).
  6. A more stringent test of whether England and Wales is the right jurisdiction for bringing cases against non-EU domiciled residents (clause 7).

The four critical areas where more work is needed are:
1. The public interest defence in clause 2 needs to allow a clearly lower threshold for responsibility in journalism for a lone blogger compared to a national newspaper.

2. Statutory qualified privilege (which covers occasions where communication between parties is protected from libel action under certain conditions such as a right of reply and fairness and accuracy) has been expanded to include scientific conferences and transcripts of their proceedings. But this does not include, as Liberal Democrats believe it should, peer-reviewed academic publications which in a sense should automatically qualify as a responsible public interest publishing, without having to mount what might be an expensive clause 2 public interest defence. Such journals already offer a right of reply which is necessary in order to benefit from QP.

If scientific conferences, where presentations are not peer-reviewed, are covered then articles that have gone through peer-review also deserve at least the same cover. This change will free medical journals from the threat of libel from corporate interests, or quacks, and also have the merit of encouraging journals to use peer-review in order to benefit from qualified privilege. Furthermore, any comment or editorials on peer-reviewed literature will benefit from the honest opinion defence since they would be commentary on privileged material.

3. Liberal Democrats want to see an end to companies being able to sue in libel, with their remedy being malicious falsehood actions (where the burden of proof is shifted to some extent) and the obtaining of declarations of falsity in court. At the moment a ban on corporate libel actions is only one option in the consultation paper appended to the draft Bill (pp 52-54 of the consultation document).

4. There is a real problem with censorship of the internet by complainants threatening innocent web hosts and internet service providers (ISPs) with liability for material authored or published on the website they support. Such web hosts and ISPs are not in a position to judge the merits of the claims but are forced, or feel obliged, to “de-host” because of their liability. Some complainants go after the hosts instead of the publisher, thereby prompting the equivalent of someone pulling out the plug at a cinema when hundreds of people are watching the film. It would be far better if web hosts and ISPs were liable only on receipt of a court order obtained by a complainant who has first pursued the original author or publisher. This would mean that while web hosts and ISPs might choose to remove obviously and grossly defamatory material, they would not be forced to do so by threat but only under the rule of law. Such an approach is far more consistent with the lectures we give to countries like China and Iran when it comes to web censorship.

Other issues in the consultation include Alternative Dispute Resolution and the extension of the ban on public authorities suing for libel being extended to all those performing public functions.

Cost containment is not be dealt with directly in the draft Bill, though costs will be expected to be driven down by the presence of early strike out of unworthy claims, reversal of the presumption of a jury trial (section 8 of the draft Bill) and clearer defences. Costs are covered by the separate Jackson review where if anything the proposals on costs recovery are so draconian that they threaten the access to the courts of ordinary individuals who have been defamed by false and irresponsible publication, which the new framework set out above rightly aims to preserve.

So there is plenty for reformers still to press for in the consultation period which ends on the 15th of June and during the scrutiny of the draft Bill by a joint House of Lords/House of Commons Select Committee. With a fair wind we’ll get the final Bill, Royal Assent and then freer expression in session 2012/13.

Dr Evan Harris co-founded the Libel Reform Campaign and is a Vice-Chair of the Federal Policy Committee

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2 Comments

  • Old Codger Chris 16th Mar '11 - 8:29pm

    Evan, and everyone who backed Simon Singh, deserves huge thanks and respect as does Simon Singh himself (perhaps we should also thank the British Chiropractors Association!).

    Just one caveat. I’m sorry to say we need legislation to protect people who don’t live in the public eye and can’t afford to sue (ie, most of us!) against media distortion and downright lies. The British press have proved time and again that they can’t be trusted to police themselves, and the Daily & Sunday Express / Daily Star group have recently withdrawn altogether from the Press Complaints Commission.

  • Evan Harris 17th Mar '11 - 8:07am

    Old Codger Chris is quite right to stress that

    “we need legislation to protect people who don’t live in the public eye and can’t [currently] afford to sue (ie, most of us!) against media distortion and downright lies.”

    The Libel Reform Campaign is determined to ensure that reform supports this position and that is what I meantt when I said

    “Costs are covered by the separate Jackson review where if anything the proposals on costs recovery are so draconian that they threaten the access to the courts of ordinary individuals who have been defamed by false and irresponsible publication, which the new framework set out above rightly aims to preserve.”

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