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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Is Britain about to leave the European Union?

A series of bad polls have pro-Europeans panicked. Are they right?

Is this what Brexit looks like? A batch of polls all show significant movement towards a Leave vote. ORB, a phone pollster, has Leave up four points to 46 per cent, with Remain’s leave cut to four points. ICM’s online poll has Leave up three points, putting Brexit ahead of Remain by 52 per cent to 48 per cent once don’t-knows are excluded. ICM’s phone poll shows Leave up six points, a Brexit lead of three points.

That two phone polls are showing advances for Leave are particularly significant, as telephone polling has tended to show lower figures for Brexit. There is a lively debate over which method, phone or online, is likely to be more effective at predicting the referendum, although no-one knows for certain at the present time.

In any case, whether on the telephone or the Internet, the latest polls have pro-Europeans worried, and Brexiteers jubilant. Who’s right?

There are reasons to start trusting the polls, at least as far as voter ID is concerned

So far, the performances of the political parties in local elections and by-elections has been about par with what we’d expect from the polls. So the chances are good that the measures taken post-2015 election are working.

Bank holidays are always difficult

I would be deeply cautious of reading too much into three polls, all of which have been conducted over the bank holiday weekend, a time when people go out, play with their kids, get wasted or go away for a long weekend. The last set of bank holiday polls gave Ed Miliband’s Labour party  large leads, well outside the average, which tended to show the two parties neck-and-neck.

Although this time they might be more revealing than we expect

One reason why the polls got it wrong in 2015 is they talked to the wrong type of people. The demographic samples were right but they were not properly representative. (Look at it like this – if my poll includes 18 actors who are now earning millions in cinema, I may have a representative figure in terms of the total number of Britain’s millionaires – but their politics are likely to be far to the left of the average British one percenter, unless the actor in question is Tom Conti.)

Across telephone and online, the pollsters talked to people who were too politically-motivated, skewing the result: Ed Miliband’s Labour party did very well among young people for whom Thursday night was a time to watch Question Time and This Week, but less well among young people for whom Thursday is the new Friday.  The polls had too many party members and not enough party animals.

But the question no-one can answer is this: it may be that differential turnout in the European referendum means that a sample of hyper-politicos is actually a better sample than an ordinary poll. Just as the polls erred in 2015 by sampling too many political people, they may be calling the referendum wrong in having too many apolitical people.

These three polls aren’t the scariest for Remain released today

IpsosMori released a poll today, taken 15 days ago and so free from any bank holiday effect, without a referendum voting intention question, but one taking the temperature on which issues the British public believe are the most important of the day.

Far from growing more invested in the question of Britain’s European Union membership as the campaign enters its terminal phase, concern about the European Union has flatlined at 28 per cent – within the margin of error of last month’s IpsosMori survey, which put Britain at 30 per cent. The proportion who believe that it is the biggest single issue facing Britain today also remains static at 16 per cent. Evidence of the high turnout necessary to avert Brexit seems thin on the ground.

Pro-Europeans should be further worried by the identity of the groups that are concerned about the European Union. Conservative voters, the over-65s and people from social grades A (higher managerial, administrative and professional workers) and B (intermediate managerial, administrative and professional workers), are more concerned about the European Union than the national average. The only one of those three groups that is more likely to favour Remain over Leave are ABers, while Conservative voters and the over-65s are likely to vote for Brexit over the status quo.

Among the demographics who are least concerned about the European Union, the only pro-Brexit group that is significantly less concerned about EU membership than the national average are people from social grades D (semi-skilled and unskilled manual workers) to E (state pensioners, casual workers and jobseekers). The other groups that are least concerned with the European Union are people who live in urban areas and people aged from 18 to 24, the two most pro-European demographics.

The prospects of a Brexit vote are rather better than the betting odds would suggest. 

Stephen Bush is special correspondent at the New Statesman. He usually writes about politics.