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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Murder by numbers: the legacy of the Grenfell Tower fire

It is difficult to refute the reality of suffering when the death toll is still being reckoned.

How do we measure human malice? Sometimes it’s all too easy. This summer, British cities are struggling through the aftermath of successive terrorist attacks and hate crimes. The Manchester bombing. The Westminster Bridge murders. The London Bridge atrocity. The attack on people outside the Finsbury Park Mosque in north London and on other mosques. The unidentified young men who are still at large in the capital after spraying acid in the faces of passers-by, mutilating them.

In Britain, we are commendably resilient about these things. Returning to London after some time away, I found my spirits lifted by an issue of the London Evening Standard magazine that celebrated the ordinary people who stepped in to help after these atrocities. The paramedics who worked through the night. The Romanian chef who offered shelter in his bakery. The football fan who took on the London Bridge terrorists, screaming, “Fuck you, I’m Millwall!” The student housing co-ordinator who rushed to organise board for the victims of the inferno at the Grenfell Tower and their families.

Wait. Hold on a second. One of these things is not like the others. The Grenfell Tower disaster, in which at least 80 people died, was not a terrorist or malicious attack. It was the result of years of callous council decisions and underinvestment in social housing. On 14 June, entire families burned alive in their homes partly because, it is alleged, the Royal Borough of Kensington and Chelsea would not pay the extra £5,000 or so for fire-resistant cladding. Nor could it find the cash, despite a budget surplus, to instal proper sprinkler systems on the rotting interior of the building.

Kensington and Chelsea is a Tory borough that, in cash terms, cares very little for poorer citizens who are unlikely to vote the right way. In 2014, while the Grenfell Tower residents were refused basic maintenance, the council handed out £100 rebates to its top-rate taxpayers, boasting of its record of “consistently delivering greater efficiencies while improving services”. Some of those efficiencies had names, and parents, and children.

This is a different sort of depravity altogether. It’s depravity with plausible deniability, right up until the point at which deniability goes up in flames. Borrowing from Friedrich Engels, John McDonnell described the Grenfell Tower disaster as “social murder”. The shadow chancellor and sometime Jack Russell of the parliamentary left has never been known for his delicate phrasing.

Naturally, the Tory press queued up to condemn McDonnell – not because he was wrong but because he was indiscreet. “There’s a long history in this country of the concept of social murder,” he said, “where decisions are made with no regard to the consequences… and as a result of that people have suffered.”

It is difficult to refute the reality of that suffering when the death toll is still being reckoned from the towering tombstone that now blights the west London skyline.” As the philosopher Hannah Arendt wrote, “The sad truth is that most evil is done by people who never make up their minds to be good or evil.”

Market austerity is no less brutal for being bloodless, calculating, an ideology of measuring human worth in pennies and making cuts that only indirectly slice into skin and bone. Redistributing large sums of money from the poor to the rich is not simply an abstract moral infraction: it kills. It shortens lives and blights millions more. Usually, it does so in a monstrously phlegmatic manner: the pensioners who die early of preventable diseases, the teenagers who drop out of education, the disabled people left to suffer the symptoms of physical and mental illness with nobody to care for them, the thousands who have died on the waiting lists for state benefits that they are perfectly entitled to, the parents whose pride disintegrates as they watch their children go to school hungry.

We are not encouraged to measure the human cost of austerity in this way, even though there are many people in back offices making exactly these sorts of calculations. This year, when researchers from the Journal of the Royal Society of Medicine claimed that “relentless cuts” to the health service could explain as many as 30,000 “excess deaths” in England and Wales in 2015, the government denounced this as “a triumph of personal bias over research”, which, however you slice it, is a callous prep school debater’s response to the reality of 30,000 fresh graves.

There is a species of evil in which an individual allows the dark and yammering corners of his mind to direct him to put a blade in a bystander’s belly, or a bomb in a bustling crowd of teenage girls. That sort of monstrosity is as easy to identify as it is mercifully rare, though frighteningly less rare than it was in less febrile times. But there is another sort of evil that seldom makes the headlines. This comes about when someone sits down with a calculator and works out how much it will cost to protect and nurture human life, deducts that from the cost of a tax rebate for local landowners or a nice night at the opera, then comes up with a figure. It’s an ordinary sort of evil, and it has become routine and automated in the austerity years. It is a sort of evil, in the words of Terry Pratchett, that “begins when you begin to treat people as things”. 

The Grenfell Tower disaster was the hellish evidence of the consequences of fiscal ruthlessness that nobody could look away from. Claims that it could not have been predicted were shot down by the victims. The residents’ association wrote on its campaign website after years of begging the council to improve living conditions: “It is a truly terrifying thought but the Grenfell Action Group firmly believe that only a catastrophic event will expose the ineptitude and incompetence of our landlord.”

That catastrophic event has happened, and the ordinary British response to tragedy – brave, mannered dignity – is inappropriate. When the Grenfell inquiry launches next month, it is incumbent on every citizen to call for answers and to call this kind of travesty by its name: murder by numbers.

Laurie Penny is a contributing editor to the New Statesman. She is the author of five books, most recently Unspeakable Things.

This article first appeared in the 20 July 2017 issue of the New Statesman, The new world disorder