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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The hidden crisis in the National Health Service

Hospitals are no longer safe places for their staff, warns Simon Danczuk.

It feels as though not a week can pass without the media warning of a fresh “crisis in the NHS”.

But while funding shortages and the impending junior doctor strike are rightly cause for concern, another major crisis is going largely unnoticed.

Figures show that 43 per cent of A&E staff have been physically assaulted at work. Every eight minutes there is some sort of violent incident in a UK hospital.

This is unacceptable, but unfortunately cases of violence against NHS workers seem to be on the increase while the government turns a blind eye to this problem of its own making.

Plotting a graph would show a startling correlation between insufficient NHS funding and the number of doctors and nurses being attacked. As NHS budgets reach breaking point, so too do many patients.

The issue, which will be highlighted in the documentary A&E: When Patients Attack, which airs tonight on Channel 5 at 10pm, is a national scandal.

Health experts suggest that the problem can be directly linked to longer waiting times and staff cutbacks, leading to growing frustration and tension in A&E and other departments. With winter fast approaching, and the notoriously busy festive season to come, incidents of violence look set to get worse. Nobody, least of all our overworked NHS doctors and nurses, should face the prospect of going to work to be attacked, spat at or insulted.

Based at the Queen Elizabeth in Birmingham, one of the country’s biggest hospitals, When Patients Attack follows a security team which uses uniformed guards and a bank of CCTV monitors to keep hospital staff safe.

The sight of a uniformed private security team in an NHS hospital is visually jarring, it would look more at home in a high-security prison than in a place of care and compassion. But the sad reality is, guards like this are a necessary part of the NHS under a Tory Government.

A&E centres across the UK, including the one in Rochdale, are being closed or consolidated creating extra journey times for patients and more pressure on those that remain.

But there is a gaping logical flaw here. NHS trusts are spending money, which should be on patient care, on employing security staff to deal with the fallout from cuts in care.

Seeing the level of physical, verbal and racial abuse that doctors and nurses have to endure makes When Patients Attack hard to watch at times. What is clear is that many of the patients featured are not lashing out for some malicious reason, they are vulnerable and bewildered people in need of care.

Many have learning difficulties or mental health problems, others are disorientated or in pain, there are those under the influence of drink or drugs and some just have nowhere else to go. A significant amount on the security team’s time seems to be spent convincing patients who have been discharged to leave the premises.

Here we see a less obvious example of how Conservative cuts are impacting on our NHS. Hospitals are always open and always welcoming. The duty of care means that no one is turned away. As a result, they are filling the void left by homelessness shelters and local government social services.

David Cameron has made much of the Government’s plan to put mental and physical health on an “equal footing”. But this will remain little more than empty rhetoric as long as those suffering from serious and complex mental health issues continue to seek help at A&E because of a lack of any alternative.

It is not just cuts to councils and the health service that have created this epidemic of NHS violence. In my constituency of Rochdale alone, Greater Manchester Police has been forced to withdraw 150 officers from the beat because of budget cuts. Business owners and members of the public have told me that Police response times have increased dramatically since 2010. It is important that violent incidents are diffused as quickly as possible and while an in-house security team is helpful, the additional support of trained Police officers is vital. Each additional minute that NHS staff have to wait for the Police increases the risk that a situation will escalate and become more serious.

Jeremy Hunt speaks of a seven-day-a-week NHS. But these grand plans ring hollow when we see the reality on the ground in the NHS today. This government cannot even guarantee that staff can work without the fear of physical harm. Our doctors and nurses are among the hardest working people in any community. The very least they can expect is to be able to care for us in a comfortable, supportive, and above all safe, environment.


Simon Danczuk is Labour MP for Rochdale