The draft Libel Reform Bill is a good thing

Why the proposals should be welcomed.

The draft Libel Reform Bill, published two days ago, has had a mixed reception. Those in favour of libel reform have broadly welcomed it, though some do not think it goes far enough; and many established libel practitioners have sought to minimise the draft bill's importance and novelty. Some libel veterans even say it will make no difference: it is almost as if they are discouraging the government from taking the draft bill forward at all.

However, as a practising media defence lawyer, I would say that there is a lot of good in the draft bill, and that if it were to pass into legislation in its present form it would make a marked difference to the nature of libel litigation. That is not to say that the draft bill could not be improved; but it is to say that it is misconceived and illiberal to dismiss the bill completely.

Let us start from first principles. One problem with libel litigation is that it is far too easy to bring a libel claim and thereby to threaten plausibly to bring a libel claim. This is one of the main causes of "libel chill". As it currently stands, libel is one of few areas of law where the claimant does not have to show any damage at all to threaten or actually bring a claim: damage is presumed. Until fairly recently, the courts used to allow claims where there had been no actual damage to proceed to full trial: the claimant could then get nominal damages of a penny or a pound, and may have to pay the defendant's legal costs, but there was nothing in principle preventing the claim running its full expensive course.

This complacent approach has shifted over the last few years. The courts are now more willing to allow a defendant to strike out a claim as an abuse of process where there has been little or no damage. But it is still for the defendant to make that application and at his or her own costs risk. It is not for the claimant to show there is substantial damage to the reputation, but for the defendant to show there has not been substantial damage.

The proposed clause 1 of the draft bill addresses this problem head on in a satisfactory and subtle way. By introducing a requirement that the claimant has to show substantial harm, the draft bill is in effect reformulating the tort of libel. Some established claimant lawyers are saying this will lead to more expense because of futile debates about whether there is substantial harm or not. I do not think this will be the case. It is more likely that the same lawyers will have to explain to their clients why claims cannot now be threatened because of this new requirement. Indeed, one may say that if a claimant and their lawyer thinks it is open to genuine dispute whether an alleged libel has not caused (or is not likely to cause) substantial harm, then they have no business to bring or threaten a claim in the first place.

The substantial harm test set out in clause 1 of the draft libel bill is a liberal and constructive provision, and one should be rather sceptical of the libel claimant lawyers who say it is not really needed. It is common sense that potential libel claimants should be required to show substantial harm before they can even threaten a libel case: at a stroke it weakens the might of heavy-handed "reputation management" lawyers who somehow appear to think that using legal threats is a legitimate form of pubic relations.

Equally significant, if not more so, is the proposed abolition of the presumption of a jury trial. Again, established libel lawyers will seek to downplay the importance of this provision. And it is indeed correct that jury trials are now infrequent. However, the effect of there being usually a jury trial at the end of the litigation process forces parties into years of complex and expensive interim litigation, as applications are made for striking out parts of the claim and the defence that will eventually go before the jury. Moreover, rulings on each of these interim applications can then be appealed by the losing party, sometimes all the way to the Supreme Court (formerly the House of Lords).

The mere fact of defamation cases having an eventual jury trial makes pre-trial proceedings more costly and elaborate than they need to be. Bringing them to an end will have a beneficial effect on libel litigation generally.

The proposal for a statutory public-interest defence should also be welcomed. However, the draft bill makes this defence more elaborate than it needs to be. It should be enough that the publication was on a matter of public interest and was published without malice: after all, the United States seems to manage with libel law being on a restricted basis without any grave problems. The draft bill, however, subjects the proposed public interest defence to a non-exhaustive checklist of matters to which the court should have regard. Some of these factors are common sense; however, the risk is that the courts will apply these factors in a formulaic and pedantic manner without any regard to the overall purpose of a public-interest defence.

There are other good parts to this draft bill. The "truth" and "honest opinion" defences are not merely cosmetic changes to the old "justification" and "fair-comment" defences as has been asserted by some commentators. Instead, the old defences are expressly abolished. Therefore, these new statutory defences will not necessarily be suffocated by the case law of the old defences; indeed, deployed sensibly by the courts, these new defences could mean that truth and honest opinion are full defences to any claim, unencumbered by the complexities of the current common law defences. And the proposed single-publication rule will bring certainty and sanity to libel litigation: no longer will each download constitute a fresh tort and the basis of a new libel claim.

The draft bill could be better. For example, one hopes the consultation period will address issues such as the capability of corporations to sue for libel. The issue of costs also have to be dealt with, though that will be done by other costs-specific legislation.

But, for me, the tests of this draft legislation are simple. Will it make it harder for a libel (or "reputation management") lawyer to advise his or her client that a spurious claim can be threatened? Will it make libel litigation less expensive and complex? Will it make it easier for defendants to point to complete defences when threatened? And will it make it easier for statements to be published on matters of public interest without the adverse effects of "libel chill"?

On each of these questions, the answer is cautiously affirmative. But the draft bill is not a default position: it is certainly not the case that this is what will be passed into law unless it can be improved. There is a real risk the established libel claimant lawyers will persuade the government that no legislation is really needed, other than in respect of making libel litigation cheaper to bring. In other words, after years of campaigning, there still may be no legislative change to libel law and procedure.

All this said, this draft Libel Bill is a great step forward. It is important that all right-minded people press for improvements; but it is also crucial to recognise that even these modest reforms are still up for grabs.

 

David Allen Green is legal correspondent of the New Statesman and is a practising media lawyer. His Jack of Kent blog chronicled the libel defence campaign of Simon Singh, 2008-10.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Corbyn's supporters loved his principles. But he ditched them in the EU campaign

Jeremy Corbyn never wanted Remain to win, and every gutless performance showed that. Labour voters deserve better. 

“A good and decent man but he is not a leader. That is the problem.” This was just-sacked Hilary Benn’s verdict on Jeremy Corbyn, and he’s two-thirds right. Corbyn is not a leader, and if that wasn’t obvious before the referendum campaign, it should be now. If the Vice documentary didn’t convince you that Corbyn is a man who cannot lead – marked by both insubstantiality and intransigence, both appalling presentation and mortal vanity – then surely his botched efforts for Remain must have.

But so what. Even Corbyn’s greatest supporters don’t rate him as a statesman. They like him because he believes in something. Not just something (after all, Farage believes in something: he believes in a bleached white endless village fete with rifle-toting freemen at the gates) but the right things. Socialist things. Non-Blairite things. The things they believe in. And the one thing that the EU referendum campaign should absolutely put the lie to is any image of Corbyn as a politician of principle – or one who shares his party’s values.

He never supported Remain. He never wanted Remain to win, and every gutless performance showed that. Watching his big centrepiece speech, anyone not explicitly informed that Labour was pro-Remain would have come away with the impression that the EU was a corrupt conglomerate that we’re better off out of. He dedicated more time to attacking the institution he was supposed to be defending, than he did to taking apart his ostensive opposition. And that’s because Leave weren’t his opposition, not really. He has long wanted out of the EU, and he got out.

It is neither good nor decent to lead a bad campaign for a cause you don’t believe in. I don’t think a more committed Corbyn could have swung it for Remain – Labour voters were firmly for Remain, despite his feeble efforts – but giving a serious, passionate account of what what the EU has done for us would at least have established some opposition to the Ukip/Tory carve-up of the nation. Now, there is nothing. No sound, no fury and no party to speak for the half the nation that didn’t want out, or the stragglers who are belatedly realising what out is going to mean.

At a vigil for Jo Cox last Saturday, a Corbyn supporter told me that she hoped the Labour party would now unify behind its leader. It was a noble sentiment, but an entirely misplaced one when the person we are supposed to get behind was busily undermining the cause his members were working for. Corbyn supporters should know this: he has failed you, and will continue to fail you as long as he is party leader.

The longer he stays in office, the further Labour drifts from ever being able to exercise power. The further Labour drifts from power, the more utterly hopeless the prospects for all the things you hoped he would accomplish. He will never end austerity. He will never speak to the nation’s disenfranchised. He will achieve nothing beyond grinding Labour ever further into smallness and irrelevance.

Corbyn does not care about winning, because he does not understand the consequences of losing. That was true of the referendum, and it’s true of his attitude to politics in general. Corbyn isn’t an alternative to right-wing hegemony, he’s a relic – happy to sit in a glass case like a saint’s dead and holy hand, transported from one rapturous crowd of true believers to another, but somehow never able to pull off the miracles he’s credited with.

If you believe the Labour party needs to be more than a rest home for embittered idealists – if you believe the working class must have a political party – if you believe that the job of opposing the government cannot be left to Ukip – if you believe that Britain is better than racism and insularity, and will vote against those vicious principles when given a reason to; if you believe any of those things, then Corbyn must go. Not just because he’s ineffectual, but because he’s untrustworthy too.

Some politicians can get away with being liars. There is a kind of anti-politics that is its own exemplum, whose representatives tell voters that all politicians are on the make, and then prove it by being on the make themselves and posing as the only honest apples in the whole bad barrel. That’s good enough for the right-wing populists who will take us out of Europe but it is not, it never has been, what the Labour Party is. Labour needs better than Corbyn, and the country that needs Labour must not be failed again.

Sarah Ditum is a journalist who writes regularly for the Guardian, New Statesman and others. Her website is here.