John Kampfner v Korieh Duodu. The Lib-Con coalition has promised a review of our costly, complicated libel laws. But do they really need reforming in the interests of free speech?
This piece was originally published on the Guardian’s liberty central
The battle recommences. After a lull during the general election campaign, the Libel Reform Campaign resumes in earnest this week with the publishing of a bill in which so many hopes for free speech are vested. Lord Lester’s private member’s defamation bill seeks to enact most of the changes that the campaign has been lobbying for over the past six months.
It sets out a stronger public interest defence, it delineates the boundaries of responsibility for authors, publishers, broadcasters and web hosts and it strikes a better balance between the competing needs of reputation and information. Most of all, it sets very detailed parameters that can help guide the new government’s promised overall review of English libel law, which has brought the country into international disrepute.
Lester’s bill is just the start. It does not seek to tackle another urgent area, that of costs. Just before the last parliament broke up, a group of MPs scuppered an attempt to ensure that lawyers cannot recoup 100% of their fee from the losing side. For years, the most avaricious firms have used and abused the no-win, no-fee rule, encouraging the rich and powerful to try it on with threatening demands against scientists, doctors, NGOs, bloggers and others.
When Index on Censorship, English Pen and Sense About Science launched the Libel Reform Campaign we were surprised at the slowness of the response of the claimant lawyers. Now they are operating at full pelt, lobbying MPs with a message that, sure, the law might need the odd tweak here and there, but essentially all is fine.
When Lord Lester gave a presentation about his plans at the bar council last week, we listened to a series of breathtaking defences of the status quo. These lawyers are frightened about their profit margins, scared stiff about the prospect of oligarchs, sheikhs and others seeking more fertile litigation pastures in other countries. “Libel tourism”, they declare, is a figment of our imagination, even as they take on the writs and cash the cheques.
As Lord Lester noted on the Today programme this week, the law needs urgent modernisation. It is hopelessly ill-equipped to deal with the internet. It relies on 19th- and 20th-century precedent to navigate the modern world. But there is a more fundamental problem. Many – although by no means all – in the legal profession appear perturbed by the very concept of free speech and would prefer a situation in which they, and not an elected parliament, decree what information the public has a right to know.
Political will to reform the UK’s libel laws has gathered apace, fed by a vocal media with its own agenda. The coalition agreement has declared that there will be a review of libel laws to “protect freedom of speech”. The Liberal Democrat Lord Lester has gone further and signalled his intention to introduce a private member’s defamation bill on libel reform later this week. Many such pronouncements have been heavy on soundbites and light on detail.
As a general proposition, reform to protect free speech is naturally to be commended. The question is, what is so wrong with our law that calls for such reform? Admittedly, our defamation laws are labyrinthine, but they have developed over centuries, and take full account of free speech at every turn. Our common law inspired article 10 of the European convention on human rights, which is the definitive modern statement of the doctrine of freedom of expression.
Calling for major reform is fashionable and wins favour with the media, but it is unnecessary and could upset the delicate balance between free speech and the right to protection from false and damaging statements.
Libel tourism is often singled out: why, it is asked, do non-UK citizens bring defamation cases through our courts? But where foreign nationals suffer genuine harm in this country, why should they not be entitled to seek redress? As it happens, judges are increasingly throwing out international claims with a limited UK readership. Where only a handful of people have read the publication and no real harm is suffered, the case is an abuse of process.
Another frequent criticism is that costs are too high for publishers facing a claim, particularly if the claim is funded by a conditional fee agreement (CFA). And it is true, there have been cases of abuse of the CFA regime. However, reform in this area has already taken place: new rules have been introduced under a pilot scheme to prevent costs from escalating unfairly.
Following the Simon Singh case, many have also contended for reform to protect science writing, because of its role in addressing health issues. But Singh won his case, and the court of appeal recognised the entitlement to express harsh criticisms in the field of science. There is no case for singling out scientific writing – as distinct from other writing in the public interest – as requiring libel reform.
There is an area where I propose we should review current laws, and only because they are often ignored. Social networking websites host blatantly defamatory user-generated content, and often disregard complaints by UK citizens. If the new government wants to reform defamation, it should start by bringing such websites to account, by requiring them to respect our laws and deal quickly and properly with requests for removal of offensive material.
Your attempt to justify the status quo is so riddled with flaws that I’m not sure where to begin. Any body of law that by your own admission is “labyrinthine” must surely be simplified and modernised. Many barristers and solicitors are falling back on the traditional notion that common law has served Britain well. If we relied on the common law to affect change to libel, we would be standing pretty much where we are in 20-30 years’ time.
In their desperate attempt to hold on to the existing rules, the forces of conservatism resort to catch-all justifications. Thus you suggest that reform is “unnecessary and could upset the delicate balance between free speech” and reputation. The problem is that the balance is skewed in the wrong direction now. In any case, well-drafted legislation should protect all interests.
Our campaign, we emphasise for the umpteenth time, is neither seeking to abolish the right to sue for defamation, nor do we represent the interests of the media. Major news organisations can look after themselves.
We are seeking to protect ordinary people – scientists, bloggers, NGOs – who are bullied into apologising by avaricious law firms even when they have nothing to apologise for. Our proposals and all manner of discussion papers are on our website. If you read them you will see that they are denuded of soundbite and heavy on detail.
When it comes to complaints about social networking sites, it is time perhaps to enter the modern world. There is an urgent need to distinguish between the liability of traditional publishers and that of websites that host material, rather than introducing draconian new legislation that chills free speech on the internet. Lord Lester’s bill will include an enlightened reform that could go some considerable way towards changing the landscape.
Libel tourism will remain a concern so long as foreign claimants can bring their cases here with minimal evidence of publication in this country. This has exerted a significant chilling effect amongst foreign publishers. Were it not for the outrage of US legislators and writers about our laws, it is unlikely that the political establishment in the UK would have moved as swiftly as it has.
Finally, Simon Singh did not “win” his case. The organisation that ridiculously tried to sue him, the BCA, stood down. Singh lost two years of his career and tens of thousands of pounds protecting himself in a case that should never have been brought. Singh’s was an exceptional case. The vast majority of writers who receive the “steaming” fax or email from law firms do not have the stomach for the fight.
You suggest that lawyers are seeking to justify the “status quo”. There is hardly such a thing as the status quo in the law of defamation. The law changes almost on a daily basis, thanks to judges (and lawyers) working to maintain the difficult balance between free speech and reputation, while taking account of modern developments such as the internet. A number of recent decisions (for example, the Google decision by Mr Justice Eady) demonstrate that the law is quite capable of dealing with developments like the internet, and taking full account of freedom of expression.
One of the problems with legislating on issues such as defamation is that we are forced to reduce complex and nuanced ideas into the black letter law of statute. And in doing so the best of intentions can be lost in the mire of imprecise drafting.
Take the Data Protection Act 1998, designed to deal with what should be a relatively straightforward concept: processing personal information. One judge has described his experience of the DPA as “weaving his way through a thicket”; another, Lord Phillips, commented that it was “a cumbersome and inelegant piece of legislation”. This does not bode well for a defamation bill designed to deal with such nebulous concepts as “responsible journalism” or “libel tourism”.
It is unfair of you to talk of lawyers resisting change because they are “frightened about their profit margins” or “scared stiff” of oligarchs choosing to take their “libel tourism” elsewhere. There are, in fact, relatively few claims brought in this country by oligarchs or other foreign-based nationals, and only a small handful of law firms regularly represent such individuals. Where such claims lack merit, the courts have the power to weed them out early. As it happens, I doubt that most lawyers are against free speech or reform per se; many (like me) have represented both claimants and media defendants, and are acutely aware of the need to protect and uphold the right to free speech.
Finally, you misleadingly characterise the debate about no-win, no-fee claims. The truth is that cases of abuse are in the minority; CFAs are more often used by individuals lacking financial clout to take on the tabloid media, following the publication of sensationalised, defamatory – and false – stories. No-win no-fee is not a cash cow for lawyers. If you lose, you don’t get paid, sometimes after years of work. And there are plenty of provisions in the costs rules ensuring that lawyers rarely – if ever – get paid “double” their fees, as is repeatedly suggested. It simply does not happen that way in the real world.
Korieh Duodu edits Defamation Law, Procedure and Practice (Sweet & Maxwell) and John Kampfner is the chief executive of Index on Censorship