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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Labour's Eurosceptics should steer clear of loaded language

Phrases such as "wholesale importation" leave the impression Labour will not speak for migrant workers.

Nothing reflects Britain’s division over Brexit than the Labour party. Do we want soft or hard Brexit? What do we prioritise? The fractures within the party’s ranks is a portrait of the divisions splintering the country.

Labour’s ambiguity over Brexit helped it in the general election in appealing to everyone. It convinced Remain voters that they could hold the Tories to account while promising the Leave voters that the referendum decision would be respected. But now clarity is needed. 

The Labour leadership seems to be angling for a hard Brexit, wishing to leave the single market and customs union on the grounds that this honours the wishes of the 52 per cent. Ironically, they are at odds with everyone in this situation, from the general public – who favour access to single market over immigration controls – to a poll in LabourList showing that 72 per cent of readers prioritised inclusion within the single market.

Jeremy Corbyn's lukewarm attitude to the EU is well documented. If the Labour Party are serious about their public ownership plans for the railways and energy, it’s likely they envision it being made difficult within the EU because of directives which create competition between the state and the private sector. There are unexplored alternatives to this, as seen in Germany and Italy where private companies are made and run the industries with the states acting as the major shareholders of the company. However it’s unlikely to see the hard left ever accepting this, given its disdain for both the private sector and the idea of it interacting with the state to deliver services.

But this is not all that should trouble progressives regarding the Labour leadership’s stance on Brexit. During a recent Andrew Marr programme in which he appeared on, Corbyn claimed that mass immigration had been used to denigrate the conditions for British workers, saying that there was a “wholesale importation” of workers from parts of Europe which would then undermine the rights of British workers. It’s an argument that has been regurgitated by British politicians consistently in recent years – but from the right, not the left.

The idea that migrants are taking British jobs and depressing wages does not hold up to evidence at all. The London School of Economics carried out a research which illustrated increases in migration from the EU did not result in depression of British wages. That’s not to suggest that wages have not stagnated, but rather the trend is linked to the financial crash in 2008, rather than migration. Corbyn’s defenders insist that there were no deliberate racist overtones in his argument, and that the villains are employers deliberately taking advantage of an easily exploited labour market. But the manner in which Corbyn framed his speech was worrying.

The reason for this is that Brexit has created an unbelievable sense of uncertainty, insecurity and fear amongst migrants. Their position in society is now being contested by politicians with different stakes in society to them. Xenophobic abuse – legitimised as an acceptable part of political discourse by Brexit – has been climbing swiftly. Immigrants are seen as threats to British jobs and that is a narrative consistently drummed out – not just since last year but for possibly the past decade.

This is not to say that Labour should not address how some employers might seek to cut costs by hiring foreign workers on a cheap rate. But phrases such as “wholesale importation” or even using the heavily demonised “mass migration” simply sketches the idea that Labour are swinging towards the hard Brexit voters, and in doing so leaving migrant workers to be defended by no one. If the intended idea was to castigate employers, it simply entrenched the idea of immigration as a problem. Rather than bringing British and migrant workers together, you know with that whole “workers of the world unite” idea, Corbyn’s framing of the argument keeps them pitted against each other.

If Brexit has shown us anything it’s that language matters in politics in how it transmits its message to people. Slogans such as “take back control” were attacks on multiculturalism and immigration, stoking white nationalism, even if the Leave campaign insisted it wasn’t about that. Likewise, Corbyn might insist it wasn’t about migrants, but his message sounded a lot like he was blaming freedom of movement for the suppression of wage growth in Britain.

Needless to say, Labour need a rethink on what kind of Brexit it pursues.