Opinion: The pressing need for libel reform

Our libel law is complex, costly and out of date. It lacks certainty and sweeps too broadly in ways that threaten freedom of speech. That is why I have prepared a Defamation Bill to act as a catalyst enabling the coalition Government to give effect to their commitment to review libel laws, and to give Parliament the opportunity to make better law.

Recent calls for libel law reform have come from the Culture, Media and Sport Select Committee Report Press Standards, Privacy and Libel, the Ministry of Justice Working Group on Libel, and the Libel Reform Campaign led by a coalition of charities, and attracting the support of over 52,000 people. Before the other two parties signed up to reform, it was the Lib Dems, inspired by Evan Harris, who gave the lead at our annual party conference last year.

Current law gives robust protection to reputation at the expense of freedom of speech. Its “chilling effect” on what people are prepared to publish has been aggravated by legal uncertainty about whether the existing defences can be relied upon. Claimants have been able to pursue defamation claims where the publication has caused them no substantial harm, and large corporations have brought libel actions against NGOs and the media without having to prove financial loss.

My Bill contains stronger and clearer defences and strikes a fairer balance between private reputation and public information. It is not a charter for irresponsible journalism, nor a rigid code. Rather, it is a framework of principles and factors to be taken into account so that the law is applied with a sense of proportion.

The Bill allows the common law to adapt to technological advances in publishing. Current law has struggled to cope with the rapid evolution of electronic communications. The Bill provides flexible principles of liability which can accommodate future developments.

The Bill does not deal with the serious problem of excessive costs in libel cases because there are existing powers to tackle this. The Government should exercise those powers as a matter of urgency without waiting for wider reforms. Costs should also be reduced as a result of the clearer and stronger protection of public interest publications, more user-friendly defences, and the earlier resolution of complaints through alternative dispute resolution, especially if there is a presumption in favour of trial by judge and not by jury.

In response to the second reading debate, on 9 July, Lord McNally announced that the Ministry of Justice would consult with interested parties over the summer recess before drafting their own Bill, using mine as a starting point, to be published early next year. I have therefore agreed to leave my Bill pending the publication of the Government’s draft Bill, in the expectation that it will not be narrower or weaker than my own Bill.

I also hope that a Joint Committee of both Houses of Parliament will scrutinise the Government’s draft Bill, and that the final version will become law in 2012.

Until now, libel law has remained the preserve of specialist lawyers skilled in its complex rules and procedures. Judges have been left to fashion the law, in concert with some piecemeal statutory reform in the 1950s and 1990s.

Libel law raises important constitutional issues. Free speech is the lifeblood of democracy and it is right that Parliament should decide issues of public policy, setting out a framework within which the courts interpret and apply this important area of law.

Justice Minister Lord McNally, Evan Harris and libel reform campaigners will discuss how the Lib Dems led the way in the fight for free speech and libel reform and debate how the Government will deliver on its pledge at a party conference fringe event. ‘Libel laws stifle debate: will the coalition stop the chill?’ is on Tuesday 21st September at 13.00 in ACC Hall 2L.

Lord Lester’s Defamation Bill is available on the Parliament website: http://services.parliament.uk/bills/2010-11/defamationhl.html

The explanatory notes to accompany the Bill are available at: http://www.odysseustrust.org/defamation/Exp_Notes2010.pdf

Further information on the Libel Reform Campaign can be found at: http://www.libelreform.org/

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One Comment

  • Liberal Eye 15th Sep '10 - 2:45pm

    I absolutely agree that libel law reform is urgently needed but not that it should be considered seperately from the excessive costs in libel cases on the grounds that “there are existing powers to tackle this.”

    Such powers are notable mainly for their abject failure. A recent study by Oxford University, A Comparative Study of Costs in Defamation Proceedings Across Europe (Google it) found that libel costs in England and Wales are a stunning 140% higher than the norm across the European countries studied. Their analysis suggests that most of the excess cost is due to more lawyers being engaged on both sides and substantially longer court proceedings in England and Wales. It may never have been explicitly intended as such, but the net result is jobs for the boys (and sometimes girls).

    The law is rather like the head office of a diversified company. It’s absolutely necessary but should be as small and efficient as possible or it sucks the life out of the business (I speak from experience here). Plainly the law in this country is at the wrong end of this range and needs a pretty fundamental shake up.

    The difficulty is, of course, that cutting back to the European average means that lots of lawyers – the majority in fact – are likely to find themselves out of work. Given the strength of their lobby in and out of Parliament I am not holding my breath.

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