In praise of libel laws

Relaxing libel laws sounds like a good thing, but is a US-style “free” press what we really want?

At first glance, Nick Clegg's announcement that he is to reform Britain's "chilling" laws against defamation seems like news to greet with a hearty cheer. Surely we would all agree with the Independent's verdict on Saturday:

Britain is the global champion when it comes to libel litigation. That is not a title to be proud of. Our exalted position is a consequence of some extraordinarily skewed libel laws. Anyone can be sued in a British court for anything published in any country, provided the defendant can show they have a "reputation" in the UK to be damaged. This has helped to turn London into a hub of libel tourism. It is also threatening to undermine free speech.

But even before the reaction to the shooting of Gabrielle Giffords led some commentators to claim that a "blood libel" is now being perpetrated against the likes of Sarah Palin, Glenn Beck and the Tea Party in general (see Charles Krauthammer in yesterday's Washington Post and, for a more nuanced response, Dan Hodges in the NS), I felt a chill about the direction of Clegg's reforms. For while our current libel laws are disgracefully abused, much of the sentiment that surrounds the campaign to loosen the policing of what we can and cannot say or print has a much bigger goal in mind.

"Ideally, Britain would move towards a US-style legal bias towards free speech," continued the Independent leader I quoted above. Or, as Natalie Rothschild wrote on Spiked: "While there is a mood for reform, let's scrap these censorious laws altogether."

There appears to be great enthusiasm for the US model (Rothschild even praises Congress for having "gone to great lengths to free American citizens from English restrictions on rigorous reporting"). I cannot share it. I have seen too many instances of where American "free speech" has degenerated into fact-twisting, hate-ranting and straightforward lying – against which no one seems to have anything like adequate legal defence.

Taking the rise

I have mentioned before how lies about John Kerry's Vietnam record could well have lost him the 2004 presidential election. Senator Al Franken devoted a chapter of his 2005 book The Truth (With Jokes) to it, but I would like to reproduce again the Boston Globe columnist Tom Oliphant's conclusions:

You know, we've put a million stories in our waste baskets over the years, because they don't . . . check . . . out. Today, we publish, or we broadcast, the mere fact of the accusation, regardless of whether it's filled with helium . . . We served as transmission belts for this stuff without ever inquiring into its accuracy.

That is what "US-style legal bias towards free speech" has led to. It's also led to more routine distortions. Every time a tax comes up for renewal in Congress, some vote for it and some against. However, those who vote for it are described time and again by their opponents as having supported a tax rise (a serious charge in a country where so many believe that their government may be a force for unending good abroad, but is run by a cabal of thieving liberals ever eager to pick the pocket of Joe Six-Pack at home).

You don't have to be a logician to work out that voting to maintain a tax that already exists is not the same as supporting a tax rise. The levy remains the same. In what sense can it be said to have risen? It doesn't matter. The "transmission belts" of the American media put it out all the same. As for other examples: just why do you think it is that so many in the US seriously believe that President Barack Obama is not a US-born citizen and is also, horror of horrors, a Muslim, too?

I would not like to see the poison of US-style political discourse become the norm in this country. But nor do I trust the British media to act responsibly without considerable legal constraints. As someone who used to write for columns whose every sentence had to be checked by in-house lawyers, I can tell you that it concentrates the mind wonderfully when you are daily reminded that the slightest error could cost the paper several thousand pounds in damages, and possibly your job.

Morals of the marketplace

I can still remember the sense of dread I felt when one column I was overseeing printed the wrong first name in a story not more than 40 words long (it concerned the prison sentence of a son of a famous novelist). "We'll have to pay him £5,000," said the paper's lawyer to me over the phone that evening, with what sounded like considerable glee at my discomfiture. "You're lucky. If he'd asked for £10,000 or £15,000 we'd have had to give it to him."

And, he could have added, my head on a platter, too. I had asked the reporter three or four times to check she'd got the name right. Still the name of his blameless brother went into the paper – which was my responsibility as the column's editor. (Some years later I ran into the individual in question in an entirely different capacity. He was amiable and, far from being worried about the mistake, seemed quite pleased to have been libelled so profitably.)

That was a matter of factual accuracy, not intentional accusation. But if you have a press unconstrained by the requirement to back up accusations with solid evidence, why bother with the facts? Peter Wilby has already written about how the reporting of criminal court cases in England now routinely rides roughshod over the Contempt of Court Act 1981.

It does not bear thinking about the groundless fantasies that, granted the leeway of their American counterparts, would soon fill the news pages and opinion columns (where "fair comment" already allows for more freedom) of British newspapers – and I don't just mean the tabloids.

"A lie gets halfway round the world before the truth has a chance to get its boots on," goes the saying attributed to H L Mencken. The threat of a tiny correction has never done much to impede the globe-trotting of any falsehood. On the other hand, the law which makes a journalist, however devious or low he may be, pause and ask himself "Is this true?" may be an unloved sanction, and one that, yes, sometimes serves to keep wrongdoing unmasked and aid the interests of the rich and powerful.

But it also protects all of us from media that too often derive their morality solely from the marketplace. Will it sell? It would be idle to suggest that a publication should not ponder that consideration when deciding what to print. I would rather at some point, however, that editors also had to weigh up the small matter of accuracy.

One would have to have quite an astounding faith in human nature to believe that this would be guaranteed without some sort of libel law.

Sholto Byrnes is a Contributing Editor to the New Statesman
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There's nothing Luddite about banning zero-hours contracts

The TUC general secretary responds to the Taylor Review. 

Unions have been criticised over the past week for our lukewarm response to the Taylor Review. According to the report’s author we were wrong to expect “quick fixes”, when “gradual change” is the order of the day. “Why aren’t you celebrating the new ‘flexibility’ the gig economy has unleashed?” others have complained.

Our response to these arguments is clear. Unions are not Luddites, and we recognise that the world of work is changing. But to understand these changes, we need to recognise that we’ve seen shifts in the balance of power in the workplace that go well beyond the replacement of a paper schedule with an app.

Years of attacks on trade unions have reduced workers’ bargaining power. This is key to understanding today’s world of work. Economic theory says that the near full employment rates should enable workers to ask for higher pay – but we’re still in the middle of the longest pay squeeze for 150 years.

And while fears of mass unemployment didn’t materialise after the economic crisis, we saw working people increasingly forced to accept jobs with less security, be it zero-hours contracts, agency work, or low-paid self-employment.

The key test for us is not whether new laws respond to new technology. It’s whether they harness it to make the world of work better, and give working people the confidence they need to negotiate better rights.

Don’t get me wrong. Matthew Taylor’s review is not without merit. We support his call for the abolishment of the Swedish Derogation – a loophole that has allowed employers to get away with paying agency workers less, even when they are doing the same job as their permanent colleagues.

Guaranteeing all workers the right to sick pay would make a real difference, as would asking employers to pay a higher rate for non-contracted hours. Payment for when shifts are cancelled at the last minute, as is now increasingly the case in the United States, was a key ask in our submission to the review.

But where the report falls short is not taking power seriously. 

The proposed new "dependent contractor status" carries real risks of downgrading people’s ability to receive a fair day’s pay for a fair day’s work. Here new technology isn’t creating new risks – it’s exacerbating old ones that we have fought to eradicate.

It’s no surprise that we are nervous about the return of "piece rates" or payment for tasks completed, rather than hours worked. Our experience of these has been in sectors like contract cleaning and hotels, where they’re used to set unreasonable targets, and drive down pay. Forgive us for being sceptical about Uber’s record of following the letter of the law.

Taylor’s proposals on zero-hours contracts also miss the point. Those on zero hours contracts – working in low paid sectors like hospitality, caring, and retail - are dependent on their boss for the hours they need to pay their bills. A "right to request" guaranteed hours from an exploitative boss is no right at all for many workers. Those in insecure jobs are in constant fear of having their hours cut if they speak up at work. Will the "right to request" really change this?

Tilting the balance of power back towards workers is what the trade union movement exists for. But it’s also vital to delivering the better productivity and growth Britain so sorely needs.

There is plenty of evidence from across the UK and the wider world that workplaces with good terms and conditions, pay and worker voice are more productive. That’s why the OECD (hardly a left-wing mouth piece) has called for a new debate about how collective bargaining can deliver more equality, more inclusion and better jobs all round.

We know as a union movement that we have to up our game. And part of that thinking must include how trade unions can take advantage of new technologies to organise workers.

We are ready for this challenge. Our role isn’t to stop changes in technology. It’s to make sure technology is used to make working people’s lives better, and to make sure any gains are fairly shared.

Frances O'Grady is the General Secretary of the TUC.