Britain does not have free speech - it has expensive speech. The Defamation Bill, outlined last month with almost hysterical optimism by Nick Clegg ("We will end the libel farce . . . [It] will let the press be free"), will make speech even more expensive, as Messrs Sue, Grabbit and Runne grub around in its statutory interstices for costly new legal arguments. It fails to deliver the reforms most necessary to protect investigative journalism; it does nothing to remedy McLibel-like corporate oppression of critics; and it will produce the near-abolition of the one procedure that has historically protected freedom of speech, namely trial by jury. It is a bad bill and anyone who thinks otherwise is either a libel lawyer or a Liberal Democrat.
Defamation law has been fashioned in a plaintiff-friendly way by judges over the centuries, much to the satisfaction of politicians who have greatly, and often unjustly, profited from its bias against media defendants. (Even John Profumo won damages for suggestions that he was sleeping with Christine Keeler, only a fortnight before he admitted the truth.)
The most important reason for that bias is a judicial fiction called "the presumption of falsity", by which every defamatory statement is presumed to be false, however likely it is to be true. This means that the media defendant must, in court, bear the burden of proving it true - a difficult task at the best of times, made impossible when, for example, witnesses disappear, or sources are abroad or reluctant to come forward. There is no doubt that, as Gatley on Libel and Slander (the libel bible) puts it: "The present rule inhibits the ability of the media to expose what they believe to be matters of public concern." That is why US courts now refuse to enforce English libel judgments.
The Defamation Bill does not make the essential reform of abolishing the presumption of falsity, for no better reason than the bold assertion in its explanatory note that "proving a negative is always difficult". This is nonsense. In all other civil actions, claimants bear the burden of proof, since they are the ones who are using the legal process to drag others into court in an effort to win damages. Unless and until defamation's unique bias towards claimants is removed by making them shoulder the burden of proving their case, no reform can succeed.
No civilised society can permit the privately owned media to run vendettas against individuals who are powerless to stop a flow of falsehoods, but here, too, our judge-made law has failed to produce a speedy or effective procedure that secures corrections and rights of reply, with damages reserved for cases in which claimants have suffered financial loss or have been the victims of malice.The Defamation Bill fails to produce sensible reform to this end.
The Bill also lacks satisfactory protection for investigative journalism. It puts the existing "responsible journalism" defence in a statutory form that has all the pitfalls of the old defence and is additionally defective because it focuses only on journalistic responsibility at the time of publication. It gives no credit for editorial responsibility afterwards in offering appropriate corrections to errors of fact and providing effective rights of reply.
Strike it out
No attempt is made to tackle the worst facet of libel law - its use by powerful public figures or corporations to quell speech by threatening or commencing expensive legal action, against which defendants surrender because, although likely to win in the end, they will obtain no more than 70 per cent of their costs and lose a great deal of time and goodwill. Defendants should be given an expedited procedure to go to court immediately to strike out such actions .
And whatever happened to the Lib Dem proposal to restrict corporations from suing for libel? The plan was to adopt an Australian-style reform, preventing companies with more than ten employees from bringing an action. This was rejected thus: "Why should a company with 15 employees be prevented from suing when one with ten could?" The point is that libel provides vindication for personal hurt, while corporations have no feelings. Only family companies should retain the right.
The task of translating case law into a modern statute is never easy and the drafters of this bill deserve some thanks for replacing the common-law definition of defamation - traditionally, the sort of statements that lower a chap in the estimation of right-thinking members of his club - with statements whose publication "has caused, or is likely to cause, substantial harm to the reputation of the claimant". But their most significant change is for the worse - in effect, removing the right of the media defendant to trial by jury. So, goodbye to Charles James Fox's Libel Act of 1792, which allowed the jury to protect popular radicals from biased judges, and welcome to an era when the limits of free speech will be decided by the judges who are now slapping superinjunctions and hyperinjunctions on the media.
The unblotting of escutcheons is a peculiarly British pastime, perhaps because we take words so much more seriously than sticks and stones (injuries caused thereby being compensated much less generously). It will take more than this conservative law - it is certainly not a liberal measure - to stop the American press from calling London "a town named Sue".