The challenge of libel reform

A draft Libel Reform Bill is imminent.

The government is poised to publish a draft Defamation Reform Bill. It may even be next week. There will then be discussion and consultation, and one hopes it will be the basis of a formal bill to be placed before parliament in the next session.

In a clever move, the Libel Reform Campaign, of which I am a supporter, today publishes an important pamphlet, "What should a defamation bill contain?" (pdf here) By publishing this pamphlet, the campaign is ensuring that there is an independent basis for assessing the content of the draft bill, rather than leaving the immediate assessments of its validity in the hands of Ministry of Justice spin. This pamphlet should be read by anyone with an interest in media law and policy.

Any libel reform will have to meet certain challenges. There is the risk that weakening libel law will allow the tabloids to trash even more the reputations of private individuals caught up in news stories. There is also the need for libel law to be reframed so as to deal with internet publication: most of defamation law was developed when publication and broadcasting were in the hands of a very few individuals.

But the biggest challenge is to ensure that libel law can no longer be used to inhibit the free discussion of matters of public interest, such as the efficacy of medicines and treatments, the behaviour of police officers and other state officials, and the conduct of powerful corporations. The huge support behind the science writer Simon Singh in his two-year battle to defeat a misconceived and illiberal libel claim brought by the now discredited British Chiropractic Association was primarily because of a widespread concern that libel law was being used so as to render certain public debates inefficient. This libel reform movement was not strictly in favour of the "freedom of the press" -- many of those involved in the campaign were as distrustful of mainstream media as they are of libel claimant lawyers -- but instead they sought the freedom of individuals to obtain reliable information on issues of public concern.

Libel reform may still not happen. A draft bill is no guarantee of actual legislation. The Libel Reform Campaign has worked hard for over a year to nudge the government into publishing the draft bill. They are to be congratulated for getting possible reform this far. However, more general participation in the debate following publication of the draft bill will help determine what will happen next. The need for libel reform has not gone away, and the campaign for libel reform needs active and engaged support now more than ever.

David Allen Green is legal correspondent of the New Statesman and a practising media lawyer. His "Jack of Kent" blog became well known for its coverage of the Simon Singh case.

 

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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No, straight couples don't face marriage discrimination

The couple are right in law, but their complaint is ill-judged and tone-deaf. 

The Court of Appeal has struck down the case of a heterosexual couple - Rebecca Steinfeld and Charles Keidan seeking to have a civil partnership. The couple in question say they are the victims of discrimination. Are they right?

The legal question is more complex than the headlines. The government’s position is that they are waiting and seeing what the introduction of equal marriage means for the future of civil partnerships. Either civil partnerships will cease to be an option for same-sex couples or they will be extended to everyone. Judges were divided as to whether or not they should leave it for the government to decide that, or if civil partnerships should be extended to heterosexual couples. They opted to leave it to parliament, albeit by a narrow margin.

Legally, the judges agree, that the state of affairs creates a system where the law treats heterosexual and homosexual couples differently, and that this should be ended. And as far as the law is concerned, I agree. But emotionally and morally, the case of Steinfeld and Keidan stick in my craw.
Let’s remember why civil partnerships were created: to allow same-sex couples to access some of the legal protections extended to heterosexual couples in a way that could pass through the Houses of Parliament without being bogged down in too many battles with religious conservatives.

The rights that are not extended to civil partners include: a prohibition on religious readings, music or symbols. They cannot take place in religious venues, regardless of the beliefs of the owners’ rights. And people in a civil partnership cannot describe themselves as “married” on legal documents. There is no provision for separation as a result of adultery.

The rights not enjoyed by married couples in civil partnerships are: the ability to have private ceremonies without witnesses present. The reason why heterosexual marriages include provision for witnesses is the existence of forced heterosexual marriages in the United Kingdom, a rare example of a legal distinction based upon the sexuality of a couple that is grounded in fact, not prejudice or mumbo-jumbo. There is still no recognition for adultery in same-sex relationships in English law, whether you are married or in a civil partnership.  Equal marriage still has yet to be extended to Northern Ireland.

But if you are a heterosexual couple and you want to have a civil union that eschews religious messages, or patriarchal tropes, from being walked down the aisle by your father to the presence of a white wedding dress, you can. If you dislike the phrase “husband” or the word “wife”, you can use whatever word you like, in a social and a legal context. Don’t forget, too, that the courts have ruled recently in favour of couples in longstanding partnerships outside of marriage being able to access pension and other survivor benefits.

So while there is discrimination as a matter of law, it is hard to see how there is discrimination as a matter of fact for heterosexual couples. There is, however, a continuing discrimination towards homosexual couples in the divorce courts and in Northern Ireland.

It seems particularly ill-judged to claim discrimination while using the courts to gain access to an institution created as a pathway to the rights you already enjoy and can freely access, crowdfunding £35,000 along the way, particularly while there is still genuine marriage inequality between heterosexual and homosexual couples. 

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to British politics.