Julian Huppert MP writes… Libel reform is an admirable prize for Liberal Democrats

In my experience, Second Reading debates are often lengthy affairs. Everyone wants to say their piece; few have something new to contribute.

The second reading of the Defamation Bill last week was no exception. We even heard the odd diatribe against threatening behaviour and internet trolls; some of which belied a complete misunderstanding of what we were actually debating.

But, for once, there was some clear consensus. In the words of John Kampfner, the chief executive of Index on Censorship:

When we launched the Libel Reform Campaign in 2009, only the Liberal Democrats backed change. Now the cause has cross party support.

Campaigned for by Evan Harris, inspired by Lord Lester’s Private Member’s Bill and now before the House as a Government Bill with Lord McNally as Minister responsible: it’s hard to find a clearer example of Liberal Democrats delivering liberal policies.

So what’s the purpose of this Bill, and what does it actually do?

It’s crucial that in the UK we get the right balance between freedom of expression and protection of reputation. That involves sorting out both the legal details, but also the practical aspects, such as the costs of libel claims – and making sure the law is clear to all, not just lawyers!

Currently, there are many failings; cases are far too expensive, resulting in a chilling effect, with people silenced for fear of even a baseless claim. The sagas of Simon Singh and Peter Wilmshurst illustrated just how tough it can be, even when you win. And libel tourism risks our national reputation.

This Bill went through a process of pre-legislative scrutiny, with public evidence and genuine discussions of the issues, based on a Draft published last year. It is significantly improved from the first version, an encouraging sign for the Draft Communications Data Bill, about to start the same progress, and in need of improvements!

This full Defamation Bill is a vast improvement on the status quo but, as always, there is room for improvement. For a detailed rundown of the issues at stake, and where I think we should be heading, my second reading speech is here, but it’s worth highlighting some key areas.

A new ‘serious harm’ threshold is right at the heart of this Bill in clause 1. This is an excellent safeguard for free speech, as it means that minor cases cannot be brought to court, although could be improved with a strike-out power so that cases can be quickly ended where there is no serious harm to consider. Lawyers tell me that this is not needed and would already be the case; this needs to be clear.

The Bill also codifies the Reynolds defence with regards to Public interest. While welcome, Ministers should consider whether it is workable to have a new ‘public interest defence’ which would apply where defendants take appropriate action to correct any errors or inaccuracies that they have made.

I am delighted by Clause 6 of the Bill, which I called for during pre-legislative scrutiny. This completely protects scientists and academics from libel actions for peer-reviewed articles – unless they are done with malicious intent. A recent survey showed 38% of editors of scientific journals have chosen not to publish certain articles because of a perceived risk of libel, and 44% have asked for changes to the way articles are written to protect themselves. Scientists should spend time doing research, not having to study the law.

Most of the other provisions in this Bill are welcome, but there are two key areas which I’d like to highlight: online content and corporations.

Clause 5 of the Bill seeks to create a new defence for website operators, but I believe it needs to be tweaked somewhat, while the proposed regulations must be published so they can be scrutinised and debated.

It needs to be made expressly clear that this is a new defence for website operators, and is optional. Existing defences they have under, for example, the E-commerce directive, will still apply, so web operators have an extra option, rather than just a duty to comply with some new regulations. I had a meeting with the Justice Minister, Jonathan Djanogly where he said he would make sure this was expressly clear in the debates to come.

We must also be clear that the good practice of post-comment moderation used by some website operators does not itself bring about liability for the comments they fail to spot. Good citizens should not be punished for not being perfect citizens.

There must also be an ability to preserve some anonymity, for example for whistleblowers. The key point is that there should be a communication channel between the person complaining and the original author, even if that is mediated by a third party.

Finally we turn to corporations and other non-natural persons. Few people realise that, when it comes to defamation, non-natural persons and companies are treated as though they are in fact real people. They can, such as in the McLibel case, abuse their power and their resources to take unreasonable libel actions.

On the one hand, the Joint Committee recommended a modest proposal that corporations should have to prove that they have substantial financial loss and that they should have to get permission from the court in order to take actions. An extreme view is that corporations should not be allowed to take libel action at all. A compromise between these must be found.

In a liberal society, the delicate balance between free speech and the right not to be defamed is of critical importance. It’s astounding that we’ve dealt with it so badly until now.

I’m delighted by the Bill, but we must ensure that, over the next few months, we develop proposals which will last, and will entrench our most basic rights. That requires further debate, and greater clarification, but for Liberal Democrats libel reform is an admirable prize.

* Julian Huppert was the Liberal Democrat MP for Cambridge from 2010-15

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2 Comments

  • Nick T Nick Thornsby 22nd Jun '12 - 5:04pm

    Excellent stuff, Julian. I think the lawyers you have spoken to about strike-out are probably right. There is ample power within the Civil Procedure Rules for courts to strike out or award summary judgment in unmeritorious claims. There would be no harm in writing an explicit strike-out sanction into the Bill, but it seems rather unnecessary.

  • Tony Dawson 23rd Jun '12 - 2:20pm

    Some good stuff there, but I am a bit concerned about the ‘serious harm’ threshold.

    Ordinary people can suffer quite badly as a result of defamation: they often balk at initiating any action because the person or organisation who has libelled them is big and powerful. I was placed in this situation in 2005 when a national newspaper and a member of the government both libelled me badly but I had no resources to take them on. The government member later went on to take the act of libelling his political opponents to new heights. The concern is always about the power of the rich adversary to run up huge legal bills and delay matters coming to court to force the person bringing the case to spend more and more.

    In my view, there is a need for a kind of ‘small claim defamation court’ for those who believe they have been defamed: where applicants could claim to a maximum amount (say £5000 or £10,000) and maximum legal costs reclaimable by either side would be set at a low amount also. The damages claimed for need not be for ‘serious harm’ in such cases: the damage should be assessed only on what it is, just as with whiplash injuries etc. Although this process would not give victims their possible fully-deserved redress, it would be a case of ‘a bird in the hand’. The money is not the big thing in these cases, it is the ability to show the world that the malicious liar has had his cumuppance and hence re-establish a business or a career or a family life/relationship which has been crippled by the lie(s).

    Surely

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