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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North Yorkshire has approved the UK’s first fracking tests in five years. What does this mean?

Is fracking the answer to the UK's energy future? Or a serious risk to the environment?

Shale gas operation has been approved in North Yorkshire, the first since a ban introduced after two minor earthquakes in 2011 were shown to be caused by fracking in the area. On Tuesday night, after two days of heated debate, North Yorkshire councillors finally granted an application to frack in the North York Moors National Park.

The vote by the Tory-dominated council was passed by seven votes to four, and sets an important precedent for the scores of other applications still awaiting decision across the country. It also gives a much-needed boost to David Cameron’s 2014 promise to “go all out for shale”. But with regional authorities pitted against local communities, and national government in dispute with global NGOs, what is the wider verdict on the industry?

What is fracking?

Fracking, or “hydraulic fracturing”, is the extraction of shale gas from deep underground. A mixture of water, sand and chemicals is pumped into the earth at such high pressure that it literally fractures the rocks and releases the gas trapped inside.

Opponents claim that the side effects include earthquakes, polluted ground water, and noise and traffic pollution. The image the industry would least like you to associate with the process is this clip of a man setting fire to a running tap, from the 2010 US documentary Gasland

Advocates dispute the above criticisms, and instead argue that shale gas extraction will create jobs, help the UK transition to a carbon-neutral world, reduce reliance on imports and boost tax revenues.

So do these claims stands up? Let’s take each in turn...

Will it create jobs? Yes, but mostly in the short-term.

Industry experts imply that job creation in the UK could reflect that seen in the US, while the medium-sized production company Cuadrilla claims that shale gas production would create 1,700 jobs in Lancashire alone.

But claims about employment may be exaggerated. A US study overseen by Penn State University showed that only one in seven of the jobs projected in an industry forecast actually materialised. In the UK, a Friends of the Earth report contends that the majority of jobs to be created by fracking in Lancashire would only be short-term – with under 200 surviving the initial construction burst.

Environmentalists, in contrast, point to evidence that green energy creates more jobs than similar-sized fossil fuel investments.  And it’s not just climate campaigners who don’t buy the employment promise. Trade union members also have their doubts. Ian Gallagher, Secretary of Blackburn and District Trade Unions Council, told Friends of the Earth that: “Investment in the areas identified by the Million Climate Jobs Campaign [...] is a far more certain way of addressing both climate change and economic growth than drilling for shale gas.”

Will it deliver cleaner energy? Not as completely as renewables would.

America’s “shale revolution” has been credited with reversing the country’s reliance on dirty coal and helping them lead the world in carbon-emissions reduction. Thanks to the relatively low carbon dioxide content of natural gas (emitting half the amount of coal to generate the same amount of electricity), fracking helped the US reduce its annual emissions of carbon dioxide by 556 million metric tons between 2007 and 2014. Banning it, advocates argue, would “immediately increase the use of coal”.

Yet a new report from the Royal Society for the Protection of Birds (previously known for its opposition to wind farm applications), has laid out a number of ways that the UK government can meet its target of 80 per cent emissions reduction by 2050 without necessarily introducing fracking and without harming the natural world. Renewable, home-produced, energy, they argue, could in theory cover the UK’s energy needs three times over. They’ve even included some handy maps:


Map of UK land available for renewable technologies. Source: RSPB’s 2050 Energy Vision.

Will it deliver secure energy? Yes, up to a point.

For energy to be “sustainable” it also has to be secure; it has to be available on demand and not threatened by international upheaval. Gas-fired “peaking” plants can be used to even-out input into the electricity grid when the sun doesn’t shine or the wind is not so blowy. The government thus claims that natural gas is an essential part of the UK’s future “energy mix”, which, if produced domestically through fracking, will also free us from reliance on imports tarnished by volatile Russian politics.

But, time is running out. Recent analysis by Carbon Brief suggests that we only have five years left of current CO2 emission levels before we blow the carbon budget and risk breaching the climate’s crucial 1.5°C tipping point. Whichever energy choices we make now need to starting brining down the carbon over-spend immediately.

Will it help stablise the wider economy? Yes, but not forever.

With so many “Yes, buts...” in the above list, you might wonder why the government is still pressing so hard for fracking’s expansion? Part of the answer may lie in their vested interest in supporting the wider industry.

Tax revenues from UK oil and gas generate a large portion of the government’s income. In 2013-14, the revenue from license fees, petroleum revenue tax, corporation tax and the supplementary charge accounted for nearly £5bn of UK exchequer receipts. The Treasury cannot afford to lose these, as evidenced in the last budget when George Osborne further subsidied North Sea oil operations through increased tax breaks.

The more that the Conservatives support the industry, the more they can tax it. In 2012 DECC said it wanted to “guarantee... every last economic drop of oil and gas is produced for the benefit of the UK”. This sentiment was repeated yesterday by energy minister Andrea Leadsom, when she welcomed the North Yorkshire decision and described fracking as a “fantastic opportunity”.

Dependence on finite domestic fuel reserves, however, is not a long-term economic solution. Not least because they will either run out or force us to exceed international emissions treaties: “Pensions already have enough stranded assets as they are,” says Danielle Pafford from 350.org.

Is it worth it? Most European countries have decided it’s not.

There is currently no commercial shale-gas drilling in Europe. Sustained protests against the industry in Romania, combined with poor exploration results, have already caused energy giant Chevron to pull out of the country. Total has also abandonned explorations in Denmark, Poland is being referred to the European Court of Justice for failing to adequately assess fracking’s impact, and, in Germany, brewers have launched special bottle-caps with the slogan “Nein! Zu Fracking” to warn against the threat to their water supply.

Back in the UK, the government's latest survey of public attitudes to fracking found that 44 per cent neither supported nor opposed the practice, but also that opinion is gradually shifting out of favour. If the government doesn't come up with arguments that hold water soon, it seems likely that the UK's fracking future could still be blasted apart.

India Bourke is the New Statesman's editorial assistant.