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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Is defeat in Stoke the beginning of the end for Paul Nuttall?

The Ukip leader was his party's unity candidate. But after his defeat in Stoke, the old divisions are beginning to show again

In a speech to Ukip’s spring conference in Bolton on February 17, the party’s once and probably future leader Nigel Farage laid down the gauntlet for his successor, Paul Nuttall. Stoke’s by-election was “fundamental” to the future of the party – and Nuttall had to win.
 
One week on, Nuttall has failed that test miserably and thrown the fundamental questions hanging over Ukip’s future into harsh relief. 

For all his bullish talk of supplanting Labour in its industrial heartlands, the Ukip leader only managed to increase the party’s vote share by 2.2 percentage points on 2015. This paltry increase came despite Stoke’s 70 per cent Brexit majority, and a media narrative that was, until the revelations around Nuttall and Hillsborough, talking the party’s chances up.
 
So what now for Nuttall? There is, for the time being, little chance of him resigning – and, in truth, few inside Ukip expected him to win. Nuttall was relying on two well-rehearsed lines as get-out-of-jail free cards very early on in the campaign. 

The first was that the seat was a lowly 72 on Ukip’s target list. The second was that he had been leader of party whose image had been tarnished by infighting both figurative and literal for all of 12 weeks – the real work of his project had yet to begin. 

The chances of that project ever succeeding were modest at the very best. After yesterday’s defeat, it looks even more unlikely. Nuttall had originally stated his intention to run in the likely by-election in Leigh, Greater Manchester, when Andy Burnham wins the Greater Manchester metro mayoralty as is expected in May (Wigan, the borough of which Leigh is part, voted 64 per cent for Brexit).

If he goes ahead and stands – which he may well do – he will have to overturn a Labour majority of over 14,000. That, even before the unedifying row over the veracity of his Hillsborough recollections, was always going to be a big challenge. If he goes for it and loses, his leadership – predicated as it is on his supposed ability to win votes in the north - will be dead in the water. 

Nuttall is not entirely to blame, but he is a big part of Ukip’s problem. I visited Stoke the day before The Guardian published its initial report on Nuttall’s Hillsborough claims, and even then Nuttall’s campaign manager admitted that he was unlikely to convince the “hard core” of Conservative voters to back him. 

There are manifold reasons for this, but chief among them is that Nuttall, despite his newfound love of tweed, is no Nigel Farage. Not only does he lack his name recognition and box office appeal, but the sad truth is that the Tory voters Ukip need to attract are much less likely to vote for a party led by a Scouser whose platform consists of reassuring working-class voters their NHS and benefits are safe.
 
It is Farage and his allies – most notably the party’s main donor Arron Banks – who hold the most power over Nuttall’s future. Banks, who Nuttall publicly disowned as a non-member after he said he was “sick to death” of people “milking” the Hillsborough disaster, said on the eve of the Stoke poll that Ukip had to “remain radical” if it wanted to keep receiving his money. Farage himself has said the party’s campaign ought to have been “clearer” on immigration. 

Senior party figures are already briefing against Nuttall and his team in the Telegraph, whose proprietors are chummy with the beer-swilling Farage-Banks axis. They deride him for his efforts to turn Ukip into “NiceKip” or “Nukip” in order to appeal to more women voters, and for the heavy-handedness of his pitch to Labour voters (“There were times when I wondered whether I’ve got a purple rosette or a red one on”, one told the paper). 

It is Nuttall’s policy advisers - the anti-Farage awkward squad of Suzanne Evans, MEP Patrick O’Flynn (who famously branded Farage "snarling, thin-skinned and aggressive") and former leadership candidate Lisa Duffy – come in for the harshest criticism. Herein lies the leader's almost impossible task. Despite having pitched to members as a unity candidate, the two sides’ visions for Ukip are irreconcilable – one urges him to emulate Trump (who Nuttall says he would not have voted for), and the other urges a more moderate tack. 

Endorsing his leader on Question Time last night, Ukip’s sole MP Douglas Carswell blamed the legacy of the party’s Tea Party-inspired 2015 general election campaign, which saw Farage complain about foreigners with HIV using the NHS in ITV’s leaders debate, for the party’s poor performance in Stoke. Others, such as MEP Bill Etheridge, say precisely the opposite – that Nuttall must be more like Farage. 

Neither side has yet called for Nuttall’s head. He insists he is “not going anywhere”. With his febrile party no stranger to abortive coup and counter-coup, he is unlikely to be the one who has the final say.