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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Something is missing from the Brexit debate

Inside Westminster, few seem to have noticed or care about the biggest question mark in the Brexit talks. 

What do we know about the government’s Brexit strategy that we didn’t before? Not much, to be honest.

Theresa May has now said explicitly what her red lines on European law and free movement of labour said implicitly: that Britain is leaving the single market. She hasn’t ruled out continuing payments from Britain to Brussels, but she has said that they won’t be “vast”. (Much of the detail of Britain’s final arrangement is going to depend on what exactly “vast” means.)  We know that security co-operation will, as expected, continue after Brexit.

What is new? It’s Theresa May’s threat to the EU27 that Britain will walk away from a bad deal and exit without one that dominates the British newspapers.

“It's May Way or the Highway” quips City AM“No deal is better than a bad deal” is the Telegraph’s splash, “Give us a deal… or we walk” is the Mirror’s. The Guardian opts for “May’s Brexit threat to Europe”,  and “May to EU: give us fair deal or you’ll be crushed” is the Times’ splash.

The Mail decides to turn the jingoism up to 11 with “Steel of the new Iron Lady” and a cartoon of Theresa May on the white cliffs of Dover stamping on an EU flag. No, really.  The FT goes for the more sedate approach: “May eases Brexit fears but warns UK will walk away from 'bad deal’” is their splash.

There’s a lot to unpack here. The government is coming under fire for David Davis’ remark that even if Parliament rejects the Brexit deal, we will leave anyway. But as far as the Article 50 process is concerned, that is how it works. You either take the deal that emerges from the Article 50 process or have a disorderly exit. There is no process within exiting the European Union for a do-over.  

The government’s threat to Brussels makes sense from a negotiating perspective. It helps the United Kingdom get a better deal if the EU is convinced that the government is willing to suffer damage if the deal isn’t to its liking. But the risk is that the damage is seen as so asymmetric – and while the direct risk for the EU27 is bad, the knock-on effects for the UK are worse – that the threat looks like a bad bluff. Although European leaders have welcomed the greater clarity, Michel Barnier, the lead negotiator, has reiterated that their order of priority is to settle the terms of divorce first, agree a transition and move to a wider deal after that, rather than the trade deal with a phased transition that May favours.

That the frontpage of the Irish edition of the Daily Mail says “May is wrong, any deal is better than no deal” should give you an idea of how far the “do what I want or I shoot myself” approach is going to take the UK with the EU27. Even a centre-right newspaper in Britain's closest ally isn't buying that Britain will really walk away from a bad deal. 

Speaking of the Irish papers, there’s a big element to yesterday’s speech that has eluded the British ones: May’s de facto abandonment of the customs union and what that means for the border between the North and the South. “May’s speech indicates Border customs controls likely to return” is the Irish Times’ splash, “Brexit open border plan “an illusion”” is the Irish Independent’s, while “Fears for jobs as ‘hard Brexit’ looms” is the Irish Examiner’s.

There is widespread agreement in Westminster, on both sides of the Irish border and in the European Union that no-one wants a return to the borders of the past. The appetite to find a solution is high on all sides. But as one diplomat reflected to me recently, just because everyone wants to find a solution, doesn’t mean there is one to be found. 

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to British politics.