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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Here’s everything wrong with Daniel Hannan’s tweet about Saturday’s Unite for Europe march

I am Captain Ahab, and Dan is my great white whale, enraging and mocking me in equal measure through his continued political survival.

I was going to give up the Daniel Hannan thing, I really was. He’s never responded to this column, despite definitely being aware of it. The chances of him changing his views in response to verifiable facts seem to be nil, so the odds of him doing it because some smug lefty keeps mocking him on the internet must be into negative numbers.

And three different people now have told me that they were blissfully unaware of Hannan's existence until I kept going on about him. Doing Dan’s PR for him was never really the point of the exercise – so I was going to quietly abandon the field, leave Hannan to his delusion that the disasters ahead are entirely the fault of the people who always said Brexit would be a disaster, and get back to my busy schedule of crippling existential terror.

Told you he was aware of it.

Except then he does something so infuriating that I lose an entire weekend to cataloguing the many ways how. I just can’t bring myself to let it go: I am Captain Ahab, and Dan is my great white whale, enraging and mocking me in equal measure through his continued political survival.

I never quite finished that book, but I’m sure it all worked out fine for Ahab, so we might as well get on with it*. Here’s what’s annoying me this week:

And here are some of the many ways in which I’m finding it obnoxious.

1. It only counts as libel if it’s untrue.

2. This sign is not untrue.

3. The idea that “liars, buffoons and swivel-eyed loons” are now in control of the country is not only not untrue, it’s not even controversial.

4. The leaders of the Leave campaign, who now dominate our politics, are 70 per cent water and 30 per cent lies.

5. For starters, they told everyone that, by leaving the EU, Britain could save £350m a week which we could then spend on the NHS. This, it turned out, was a lie.

6. They said Turkey was about to join the EU. This was a lie too.

7. A variety of Leave campaigners spent recent years saying that our place in the single market was safe. Which it turned out was... oh, you guessed.

8. As to buffoons, well, there’s Brexit secretary David Davis, for one, who goes around cheerfully admitting to Select Committees that the government has no idea what Brexit would actually do to the economy.

9. There was also his 2005 leadership campaign, in which he got a variety of Tory women to wear tight t-shirts with (I’m sorry) “It’s DD for me” written across the chest.

10. Foreign secretary Boris Johnson, meanwhile, is definitely a liar AND a buffoon.

11. I mean, you don’t even need me to present any evidence of that one, do you? You just nodded automatically.

12. You probably got there before me, even. For what it's worth, he was sacked from The Times for making up a quote, and sacked from the shadow frontbench for hiding an affair.

13. Then there’s Liam Fox, who is Liam Fox.

14. I’m not going to identify any “swivel-eyed loons”, because mocking someone’s physical attributes is mean and also because I don’t want to get sued, but let’s not pretend Leave campaigners who fit the bill would be hard to find.

15. Has anyone ever managed to read a tweet by Hannan beginning with the words “a reminder” without getting an overwhelming urge to do unspeakable things to an inanimate object, just to get rid of their rage?

16. Even if the accusation made in that picture was untrue, which it isn’t, it wouldn’t count as libel. It’s not possible to libel 52 per cent of the electorate unless they form a distinct legal entity. Which they don’t.

17. Also, at risk of coming over a bit AC Grayling, “52 per cent of those who voted” is not the same as “most Britons”. I don’t think that means we can dismiss the referendum result, but those phrases mean two different things.

18. As ever, though, the most infuriating thing Hannan’s done here is a cheap rhetorical sleight of hand. The sign isn’t talking about the entire chunk of the electorate who voted for Brexit: it’s clearly talking specifically about the nation’s leaders. He’s conflated the two and assumed we won’t notice.

19. It’s as if you told someone they were shit at their job, and they responded, “How dare you attack my mother!”

20. Love the way Hannan is so outraged that anyone might conflate an entire half of the population with an “out of touch elite”, something that literally no Leave campaigners have ever, ever done.

21. Does he really not know that he’s done this? Or is he just pretending, so as to give him another excuse to imply that all opposition to his ideas is illegitimate?

22. Once again, I come back to my eternal question about Hannan: does he know he’s getting this stuff wrong, or is he genuinely this dim?

23. Will I ever be able to stop wasting my life analysing the intellectual sewage this infuriating man keeps pouring down the internet?

*Related: the collected Hannan Fodder is now about the same wordcount as Moby Dick.

Jonn Elledge edits the New Statesman's sister site CityMetric, and writes for the NS about subjects including politics, history and Daniel Hannan. You can find him on Twitter or Facebook.