Whatever happened to libel reform?
The need for changing libel law remains urgent.
By David Allen Green Published 09 November 2011 17:54
Once upon a time there was a misconceived and illiberal libel case. In fact, there were many; but this one stood out. The claim brought against Dr Simon Singh by the now discredited British Chiropractic Association was so repellent on its facts that via the internet and -- towards the end -- the mainstream media, it became the main basis for a libel reform campaign which in turn led to all major political parties committing to reform in their manifestos.
Simon Singh did not win that case outright. Instead, the BCA withdrew the case after he appealed successfully to the Court of Appeal on just a preliminary point. By that stage the case had lasted two years and Simon Singh tells me he was exposed to £250,000 of legal costs. The case was still nowhere near a full trial. And such a waste of time and money is not untypical in libel litigation.
But the fundamental problem with libel is not really the costs: in itself libel litigation is not more or less expensive than any other civil litigation. Nor are the delays exceptional: all High Court litigation plods along at a frustratingly slow pace. The problem is the wrongful use to which libel law is put. In essence, libel law has badly lost its way.
Libel is used (and commercially promoted by claimant lawyers) as a tool of "reputation management". This means that it is deployed so as to get things taken down from websites, or to ensure things are not published in print editions. However, this is a cynical distortion of what libel should be about.
Instead, libel law should be about the vindication of reputations, and not their "management". The clumsy but coercive law of libel should not be a mere PR technique. However, it is routinely used almost as if it provides a property right over the words of others. With one lawyer's letter, content is removed or not published in the first place.
There are two main reasons why libel has ended up in such an unfortunate state. First, there are problems with the tort itself: it is still actionable without the need to show damages, and the claimant effectively has to show nothing other than publication to bring a case. Accordingly, a libel case is very easy to launch -- and thereby threaten to launch.
Second, for decades libel served the useful function of regulating the popular press (whilst maintaining the fiction that the press was not being regulated). Libel litigation was generally a Fleet Street affair, with all the editors and lawyers involved working within a few hundred yards of each other. There were occasional cases where outsiders were caught up in libel -- for example, the McLibel two -- but for the most part, libel prevented tabloid excesses in practice, even if the substantive law was flawed. But those monochrome days have gone, and libel law is not well placed for dealing with internet publications.
There are currently few high profile libel cases, so libel is less news worthy. The Courts have also modified some of the abuses of libel law and practice; for example, it is now less difficult (though still not straightforward) to strike out cases as "abuses of process". But there is only so much the courts can do. There needs to be primary legislation. Things which would be in the public interest to publish are not being published, just because of the law of libel.
Is reform any nearer? Slightly. Over the last year or so, the Ministry of Justice have put together a draft Defamation Bill. It contains many sensible modernizing reforms. The draft Bill has been welcomed by a parliamentary joint committee. But there is still a real risk that the government will not include it in the next Queen's Speech.
So, if you are around London today, do go and join the lobby of parliament for libel reform, from 6pm onwards. And take an interest in the draft Bill, and keep watching the campaign. All the efforts of Simon Singh and many others will be for nothing if, at this late moment, the campaign for libel reform fails.
David Allen Green is legal correspondent of the New Statesman and a media lawyer. His Jack of Kent blog closely followed the BCA v Singh case.
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7 comments
"Accordingly, a libel case is very easy to launch"
Well, if you're stinking rich it is. For the rest of us, it's pretty much impossible to launch.
While I agree with pretty much all the points you make, I think you're missing a further point, which is that the costs of libel action make it a tool of the rich and powerful. A rich and powerful person or organisation can, as you say, easily threaten an individual of limited means with an excellent chance of intimidating them into deleting whatever they posted, whether or not they really should do.
But equally, rich and powerful people can mostly write whatever they like about those who can't afford to start a libel action (yes, I realise that CFAs can help if there is an absolutely slam-dunk case, but many cases are not), safe in the knowledge that they will get away with it.
It's this ability of libel law to perpetuate power inequalities that really gets on my tits.
They've probably slapped an injunction on it.
Its so easy to put a gagging order on things these days.
If the current judicially imposed arrangement on privacy were enacted into the statute law, but with the burden of proof in libel actions placed on the plaintiff, then who could object to that? And why?
Making the privacy law statutory as the price of reversing the burden of proof in libel actions. That would be the deal. The corporate media cannot expect their own way all the time.
What happened to you answering my questions David?
Please don't think you can run in more legal paperwork. i can see right through you David. You can run but you can't hide from me David.
this sounds like you at the moment. Is libel law really that important. What about the destruction of the environment ? What about fracking and forests? YOU might as be talking double Dutch.
http://www.youtube.com/watch?v=-84FYh3iffA&feature=related
http://www.youtube.com/watch?v=nZnVIpsDvOA
Just for you.
What about a piece on environmental law? I don't like fracking. Can you help me? Or perhaps you want me to reveal ALL!
I want you to make sure all the water ways in Britain are clean. I want you to stop fracking .. tie the licences in legal knots. Stop it happening. the campers should camp on any potential fracking land. Water is man's number one priority.
Please
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