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 decline of the north's sporting powerhouse

Yorkshire historically acted as a counterweight to the dominance of southern elites, in sport as in politics and culture. Now, things are different.

On a drive between Sheffield and Barnsley, I spotted a striking painting of the Kes poster. Billy Casper’s two-fingered salute covered the wall of a once-popular pub that is now boarded up.

It is almost 50 years since the late Barry Hines wrote A Kestrel for a Knave, the novel that inspired Ken Loach’s 1969 film, and it seems that the defiant, us-against-the-world, stick-it-to-the-man Yorkshireness he commemorated still resonates here. Almost two-thirds of the people of south Yorkshire voted to leave the EU, flicking two fingers up at what they saw as a London-based establishment, detached from life beyond the capital.

But whatever happened to Billy the unlikely lad, and the myriad other northern characters who were once the stars of stage and screen? Like the pitheads that dominated Casper’s tightly knit neighbourhood, they have disappeared from the landscape. The rot set in during the 1980s, when industries were destroyed and communities collapsed, a point eloquently made in Melvyn Bragg’s excellent radio series The Matter of the North.

Yorkshire historically acted as a counterweight to the dominance of southern elites, in sport as in politics and culture. Yet today, we rarely get to hear the voices of Barnsley, Sheffield, Doncaster and Rotherham. And the Yorkshire sporting powerhouse is no more – at least, not as we once knew it.

This should be a matter of national concern. The White Rose county is, after all, the home of the world’s oldest registered football club – Sheffield FC, formed in 1857 – and the first English team to win three successive League titles, Huddersfield Town, in the mid-1920s. Hull City are now Yorkshire’s lone representative in the Premier League.

Howard Wilkinson, the manager of Leeds United when they were crowned champions in 1992, the season before the Premier League was founded, lamented the passing of a less money-obsessed era. “My dad worked at Orgreave,” he said, “the scene of Mrs Thatcher’s greatest hour, bless her. You paid for putting an axe through what is a very strong culture of community and joint responsibility.”

The best-known scene in Loach’s film shows a football match in which Mr Sugden, the PE teacher, played by Brian Glover, comically assumes the role of Bobby Charlton. It was played out on the muddy school fields of Barnsley’s run-down Athersley estate. On a visit to his alma mater a few years ago, David Bradley, who played the scrawny 15-year-old Billy, showed me the goalposts that he had swung from as a reluctant goalkeeper. “You can still see the dint in the crossbar,” he said. When I spoke to him recently, Bradley enthused about his lifelong support for Barnsley FC. “But I’ve not been to the ground over the last season and a half,” he said. “I can’t afford it.”

Bradley is not alone. Many long-standing fans have been priced out. Barnsley is only a Championship side, but for their home encounter with Newcastle last October, their fans had to pay £30 for a ticket.

The English game is rooted in the northern, working-class communities that have borne the brunt of austerity over the past six years. The top leagues – like the EU – are perceived to be out of touch and skewed in favour of the moneyed elites.

Bradley, an ardent Remainer, despaired after the Brexit vote. “They did not know what they were doing. But I can understand why. There’s still a lot of neglect, a lot of deprivation in parts of Barnsley. They feel left behind because they have been left behind.”

It is true that there has been a feel-good factor in Yorkshire following the Rio Olympics; if the county were a country, it would have finished 17th in the international medals table. Yet while millions have been invested in “podium-level athletes”, in the team games that are most relevant to the lives of most Yorkshire folk – football, cricket and rugby league – there is a clear division between sport’s elites and its grass roots. While lucrative TV deals have enriched ruling bodies and top clubs, there has been a large decrease in the number of adults playing any sport in the four years since London staged the Games.

According to figures from Sport England, there are now 67,000 fewer people in Yorkshire involved in sport than there were in 2012. In Doncaster, to take a typical post-industrial White Rose town, there has been a 13 per cent drop in participation – compared with a 0.4 per cent decline nationally.

Attendances at rugby league, the region’s “national sport”, are falling. But cricket, in theory, is thriving, with Yorkshire winning the County Championship in 2014 and 2015. Yet Joe Root, the batsman and poster boy for this renaissance, plays far more games for his country than for his county and was rested from Yorkshire’s 2016 title decider against Middlesex.

“Root’s almost not a Yorkshire player nowadays,” said Stuart Rayner, whose book The War of the White Roses chronicles the club’s fortunes between 1968 and 1986. As a fan back then, I frequently watched Geoffrey Boycott and other local stars at Headingley. My favourite was the England bowler Chris Old, a gritty, defiant, unsung anti-hero in the Billy Casper mould.

When Old made his debut, 13 of the 17-strong Yorkshire squad were registered as working-class professionals. Half a century later, three of the five Yorkshiremen selec­ted for the last Ashes series – Root, Jonny Bairstow and Gary Ballance – were privately educated. “The game of cricket now is played in public schools,” Old told me. “Top players are getting huge amounts of money, but the grass-roots game doesn’t seem to have benefited in any way.”

“In ten years’ time you won’t get a Joe Root,” Rayner said. “If you haven’t seen these top Yorkshire cricketers playing in your backyard and you haven’t got Sky, it will be difficult to get the whole cricket bug. So where is the next generation of Roots going to come from?” Or the next generation of Jessica Ennis-Hills? Three years ago, the Sheffield stadium where she trained and first discovered athletics was closed after cuts to local services.

This article first appeared in the 19 January 2017 issue of the New Statesman, The Trump era