Libel litigation is not fit for purpose

A four year ordeal comes to an end.

Today the Court of Appeal finally brought to an end the misconceived and illiberal case brought against Labour bloggers John Gray and Alex Hilton. There is nowhere else for the claimant to go with this case in the United Kingdom. Her only way forward is to take the case to the European Court of Human Rights, but then her case will then be against the UK, and not these two Labour bloggers.

In one distorted way, this final defeat perhaps shows libel law is somehow working. That is certainly how apologists for the current mess which is English libel law would put it: the claimant's case was struck out by the courts applying English substantive and procedural case law, thereby no legal change is needed and so English libel law is working.

However, this is simply not correct. Last year, the High Court held correctly that the libel claim had no merit and struck the claim out as an abuse of process. But this was after three years of draining litigation which left the defendants facing the real possibility of bankruptcy. It also took the intervention of my friend Robert Dougans, with pro bono help from the likes of me and other veterans of the British Chiropractic Association v Simon Singh case. Had it not been for our involvement, the case could well have gone to full jury trial. It then could have gone to a full Court of Appeal, and so on. There could have been years more of this case. And remember, this was always a case with no merit whatsoever.

English libel law remains unfit for purpose. The courts quaintly presume any alleged libel has caused damage and that it is false. The claimant has very little to show before a claim can be launched or even threatened. It is then for the defendant to either prove the alleged libel is not a libel, or that it is false or honest opinion, or that it is an abuse of process as no damage has actually been caused. The claimant can just sit back whilst the defendant incurs immense costs and negotiates evidential problems. There also remains no useful public interest defence for political, science, or other bloggers and journalist to rely on. Libel law, both in substantive and procedural terms, is in an awful state.

There is the possibility that the government will publish a draft libel reform bill later this month. One hopes it is a sensible bill, which will make it more difficult for bad libel claims to be threatened and far easier for them to be got rid of when they are brought. However, the government may instead suggest mere tinkering. We have to wait and see.

But it must be emphasised: Alex Hilton and John Gray did nothing wrong, and still they had four years of genuine worry and inconvenience. It could have been any blogger or commenter in their place. The case against them has taken four years to bring to today's ultimate end. This cannot be right. To allude to a famous election poster: Libel isn't working.

 

David Allen Green is legal correspondent of the New Statesman and a practising media lawyer. He is a supporter of the Libel Reform Campaign.

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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A small dose of facts could transform Britain's immigration debate

While "myth-busting" doesn't always work, there is an appetite for a better informed conversation than the one we're having now. 

For some time opinion polls have shown that the public sees immigration as one of the most important issues facing Britain. At the same time, public understanding of the economic and social impacts of immigration is poor and strongly influenced by the media: people consistently over-estimate the proportion of the population born outside the UK and know little about policy measures such as the cap on skilled non-EU migration. The public gets it wrong on other issues too - on teenage pregnancy, the Muslim population of the UK and benefit fraud to name just three. However, in the case of immigration, the strength of public opinion has led governments and political parties to reformulate policies and rules. Theresa May said she was cracking down on “health tourists” not because of any evidence they exist but because of public “feeling”. Immigration was of course a key factor in David Cameron’s decision to call a referendum on the UK’s membership with the EU and has been central to his current renegotiations.  

Do immigration facts always make us more stubborn and confused?

The question of how to both improve public understanding and raise the low quality of the immigration debate has been exercising the minds of those with a policy and research interest in the issue. Could the use of facts address misconceptions, improve the abysmally low quality of the debate and bring evidence to policy making? The respected think tank British Future rightly warns of the dangers associated with excessive reliance on statistical and economic evidence. Their own research finds that it leaves people hardened and confused. Where does that leave those of us who believe in informed debate and evidence based policy? Can a more limited use of facts help improve understandings and raise the quality of the debate?

My colleagues Jonathan Portes and Nathan Hudson-Sharp and I set out to look at whether attitudes towards immigration can be influenced by evidence, presented in a simple and straightforward way. We scripted a short video animation in a cartoon format conveying some statistics and simple messages taken from research findings on the economic and social impacts of immigration.

Targeted at a wide audience, we framed the video within a ‘cost-benefit’ narrative, showing the economic benefits through migrants’ skills and taxes and the (limited) impact on services. A pilot was shown to focus groups attended separately by the general public, school pupils studying ‘A’ level economics and employers.

Some statistics are useful

To some extent our findings confirm that the public is not very interested in big statistics, such as the number of migrants in the UK. But our respondents did find some statistics useful. These included rates of benefit claims among migrants, effects on wages, effects on jobs and the economic contribution of migrants through taxes. They also wanted more information from which to answer their own questions about immigration. These related to a number of current narratives around selective migration versus free movement, ‘welfare tourism’ and the idea that our services are under strain.

Our research suggests that statistics can play a useful role in the immigration debate when linked closely to specific issues that are of direct concern to the public. There is a role for careful and accurate explanation of the evidence, and indeed there is considerable demand for this among people who are interested in immigration but do not have strong preconceptions. At the same time, there was a clear message from the focus groups that statistics should be kept simple. Participants also wanted to be sure that the statistics they were given were from credible and unbiased sources.

The public is ready for a more sophisticated public debate on immigration

The appetite for facts and interest in having an informed debate was clear, but can views be changed through fact-based evidence? We found that when situated within a facts-based discussion, our participants questioned some common misconceptions about the impact of immigration on jobs, pay and services. Participants saw the ‘costs and benefits’ narrative of the video as meaningful, responding particularly to the message that immigrants contribute to their costs through paying taxes. They also talked of a range of other economic, social and cultural contributions. But they also felt that those impacts were not the full story. They were also concerned about the perceived impact of immigration on communities, where issues become more complex, subjective and intangible for statistics to be used in a meaningful way.

Opinion poll findings are often taken as proof that the public cannot have a sensible discussion on immigration and the debate is frequently described as ‘toxic’. But our research suggests that behind headline figures showing concern for its scale there may be both a more nuanced set of views and a real appetite for informed discussion. A small dose of statistics might just help to detoxify the debate. With immigration a deciding factor in how people cast their vote in the forthcoming referendum there can be no better time to try.