Whatever happened to libel reform?

The need for changing libel law remains urgent.

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.

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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It’s obvious why Thais can’t resist our English footballers. But they want our schools, too

The only explanation is . . . our footer must be great and exciting to watch.

At Bangkok airport, sitting in the Club lounge, as I am a toff, I spotted a copy of Thailand Tatler, a publication I did not know existed. Flicking through, I came across a whole page advert announcing that RUGBY SCHOOL IS COMING TO THAILAND.

In September, Rugby will open a prep and pre-prep department, and then, in 2018, full boarding for ages up to 17. How exciting – yet another English public school sets up a satellite in Thailand.

But I was confused. Just as I was confused all week by the Thai passion for our football.

How has it happened that English public schools and English football have become so popular in Thailand? There is no colonial or historical connection between the UK and Thailand. English is not the Thais’ first language, unlike in other parts of the world such as India and Hong Kong. Usually that explains the continuation of British traditions, culture and games long after independence.

When I go to foreign parts, I always take a large wodge of Beatles and football postcards. I find deprived persons all over the world are jolly grateful for these modern versions of shiny beads – and it saves tipping the hotel staff. No young Thai locals were interested in my Beatles bits, but boy, my footer rubbish had them frothing.

I took a stash of seven-year-old postcards of Andy Carroll in his Newcastle strip, part of a set given away free in Barclays banks when they sponsored the Premier League. I assumed no one in Thailand would know who the hell Andy Carroll was, but blow me, every hotel waiter and taxi driver recognised him, knew about his various clubs and endless injuries. And they all seemed to watch every Premiership game live.

I have long been cynical about the boasts that our Prem League is the most watched, the most popular in the world, with 200 countries taking our TV coverage every week. I was once in Turkey and went into the hotel lounge to watch the live footer. It was chocka with Turks watching a local game, shouting and screaming. When it finished, the lounge emptied: yet the next game was our FA Cup live. So I watched it on my own. Ever since, I’ve suspected that while Sky might sell rights everywhere, it doesn’t mean many other folk are watching.

But in Thailand I could see their passion, though most of them have no experience of England. So the only explanation is . . . our footer must be great and exciting to watch. Hurrah for us.

Explaining the passion for English public schools is a bit harder. At present in Thailand, there are about 14 boarding schools based on the English public-school system.

Rugby is only the latest arrival. Harrow has had a sister school there since 1998. So do Shrewsbury, Bromsgrove and Dulwich College (recently renamed British International School, Phuket).

But then I met Anthony Lark, the general manager of the beautiful resort where I was staying in the north of the island. He’s Australian, been out there for thirty years, married to a Thai. All three of his sons went to the Phuket school when it was still Dulwich International College.

His explanations for the popularity of all these British-style schools included the fact that Thailand is the gateway to Asia, easy to get to from India and China; that it’s relatively safe; economically prosperous, with lots of rich people; and, of course, it’s stunningly beautiful, with lovely weather.

There are 200,000 British expats in Thailand but they are in the minority in most of these British-style public schools – only about 20 per cent of the intake. Most pupils are the children of Thais, or from the surrounding nations.

Many of the teachers, though, are from English-speaking nations. Anthony estimated there must be about five thousand of them, so the schools must provide a lot of work. And presumably a lot of income. And, of course, pride.

Well, I found my little chest swelling at the thought that two of our oldest national institutions should be so awfully popular, so awfully far away from home . . . 

Hunter Davies is a journalist, broadcaster and profilic author perhaps best known for writing about the Beatles. He is an ardent Tottenham fan and writes a regular column on football for the New Statesman.

This article first appeared in the 27 April 2017 issue of the New Statesman, Cool Britannia 20 Years On

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