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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The SNP retains power as Scottish Labour faces being beaten into third

Ruth Davidson’s Conservative Party looks on track to become the official opposition in Holyrood.

As expected, the SNP have performed well in the Scottish elections, with an increased vote share and some key gains – particularly from Labour in Glasgow, where Nicola Sturgeon’s party took all eight constituency seats. As it stands, they could be on course for a second successive majority in Holyrood, once the list members are fully counted.

The story of the night, though, is the demise of Scottish Labour, which put in its worst ever performance in Scotland (my stalwart liveblogging colleague Stephen Bush points out that it’s the party’s worst result since universal suffrage was introduced in 1928). The party’s vote share was done across Scotland, and the results are sufficiently poor that they could see them fall behind the Conservatives to become the third biggest party north of the border.

Losses for Labour include seat of Eastwood in Glasgow, where Scottish Conservatives deputy leader Jackson Carlaw defeated Ken Macintosh. Labour had held the seat for 17 years, though it had been Conservative beforehand.

Other key losses for Scottish Labour include Dumfriesshire, where they were beaten into third; Renfrewshire South (which went to the SNP); Cowdenbeath, where Gordon Brown's old constituency manager and protégé Alex Rowley also lost to the SNP; Glasgow Pollok, where former Scottish Labour leader Johann Lamont lost to the SNP’s Humza Yousaf. There was a close call for Labour’s Jackie Baillie in Dumbarton, where she held on by just 109 votes.

Rare successes came in Edinburgh Southern, where Daniel Johnson took the seat from the SNP’s Jim Eadie (although since the seat is effectively a four-way marginal, it’s not a particularly indicative gain), and East Lothian, where former Scottish Labour leader Iain Gray managed to increase a previously slender majority.

Speaking to the BBC, Scottish Labour leader Kezia Dugdale said:

“A very bad night for the Labour party… There’s no doubt that the constitution has dominated this election.”

She also confirmed that “no matter what, 100 per cent, I will remain leader of the Scottish Labour party”.

In a great night for her party, Ruth Davison won her seat in Edinburgh Central, making her the first Scottish Conservative leader not to need the list system to enter the Scottish Parliament  since 2005. The Tories also gained Aberdeen West from the SNP as well as their success in Dumfriesshire.

The Liberal Democrats also had a better-than-expected night. Their leader, Willie Rennie, took the Fife North East seat from the SNP, and his party also had comfortable holds in Orkney and Shetland.

Caroline Crampton is web editor of the New Statesman.