Nobody sensible wants to abolish libel law, to allow a free-for-all in which reputations are impugned without a right to redress. It’s about balance and proportion, says John Kampfner
This article first appeared in the Independent
There’s nothing like a boob job cream to get readers going on an important issue. The case of Dr Dalia Nield, one of the country’s leading plastic surgery consultants, goes to the heart of the problem with English libel law. Dr Nield took issue with the company producing the cream, which claimed to increase a woman’s cup size. Her remarks, in a national newspaper, produced a familiar outcome — a threat of action from Britain’s legal establishment.
A citizens’ advice bureau has been threatened for challenging the conduct of a fraud-prevention firm. An official at a south London borough is being sued for comments allegedly made about a local headmaster in emails between himself and a civil servant.
These cases and more attest to a culture in the UK of the citizen critic being prevented from airing concerns on matters of public interest. For decades England’s defamation culture (Scotland’s is marginally better) has been skewed towards the claimant — usually the rich, the powerful and quite often the plain dodgy.
This is not an issue confined to the rights of journalists and writers. I could have mentioned the talismanic case of Simon Singh, or Mumsnet, or Sheffield Wednesday football fans, or the cardiologist Peter Wilmshurst, who is being dragged through the courts for remarks he made at a medical conference in the US about the clinical trial of a heart device. So far, so terrible: and yet, after a year-long lobbying campaign, the law is set to change. This spring the Coalition Government launches its draft Defamation Bill – the first serious attempt to rebalance the law for generations.
Politicians have come a long way in a short space of time. When the Libel Reform Campaign was started in November 2009, only the Liberal Democrats supported change. Jack Straw, then Justice Secretary, said originally he did not know what all the fuss was about.
Straw’s complacency ran in the face of the evidence, but also a ground-breaking report by the House of Commons Culture, Media and Sport Select Committee. In the course of a long inquiry, many of its members changed tack. Its report on libel, privacy and press standards in February 2010 struck an eloquent balance between free expression and the duties of the media. The MPs criticised the Labour government for not tackling libel tourism, and the damage to the country’s reputation. They described the fact that US states were introducing legislation to defend American citizens from UK courts as “a humiliation for our system that the US legislators should feel the need to take steps to protect freedom of speech from what are seen as unreasonable incursions by our courts”.
Straw responded by launching a Justice Ministry working party in which Index on Censorship (of which I am chief executive), English PEN and Sense About Science played a leading role. All three main parties went into the 2010 election promising radical reform, and within months that process had begun. First, in the Lords, the indomitable civil libertarian Lord Lester launched his own private member’s bill on libel. Lester’s bill marked a quiet revolution. Its remit was broad: to introduce a statutory defence of responsible publication on a matter of public interest; clarify the defences of justification and fair comment; require claimants to show substantial harm and corporate bodies to show financial loss; and to deal with libel tourism. In a nod to the 21st century, the bill also sought to address the problems of the internet age, including multiple publication and the responsibility of internet service providers and hosts.
This was immediately taken up by the government, led by the Lib Dem Justice Minister, Lord McNally, who recently told the first anniversary meeting of the campaign that Britain’s laws were “not fit for purpose”. McNally’s government bill, which develops Lester’s work, will be published by late March, ushering in a six-month period of pre-legislative scrutiny.
From that point the battle will move from the principle to the detail. The forces of resistance – the claimant cabal – will do everything it can to maintain its profit margins. According to an Oxford University report in 2008, the overall cost of a defamation case in England and Wales is 140 times higher than the European average. These law firms will lobby to water down and possibly even reverse the bill’s most important provisions.
Our critics suggest that our campaign is a proxy for “big media”. We are not. We speak for over 40 civil society groups. The UK’s main newspapers are capable of looking after themselves. We aim to make it harder for oligarchs and sheikhs to use English courts to stifle free speech around the world. We aim to repair a body of law that has seen countless individuals and voluntary organisations either sued in court or forced into apologising for and retracting comments, articles and books, even though they have done nothing wrong. Legal firms deliberately string things along in order to drain the defendant of energy and cash. The cases that do not make it to court are often more alarming than the ones that do.
Libel is not a zero sum game. Nobody sensible wishes to abolish it, to allow a free-for-all in which reputations are impugned without any right to redress. The issue is balance and proportion. Nor do we ignore the other attendant issues such as the reputation and standards of the media, or that other fundamental human right, to privacy. Our organisations will shortly be conducting separate research to help develop alternative dispute mechanisms for people who seek redress in a less confrontational forum.
Considerable work lies ahead to ensure that the final legislation, due to be enacted in 2012, does not lose sight of the fact that the UK currently has one of the most repressive libel regimes in the Western world. Its effects are felt far and wide. Anyone, anywhere can be sued in a London court for anything said in any language – as long as the defendant can prove a “reputation” in the UK. (Second home? Child in boarding school?).
It is no wonder that the US Congress followed New York and other states and signed into law measures that protect Americans against English libel judgements. Three weeks ago, Ukraine’s top English-language publication said it was blocking all web traffic from the UK to insulate itself from Britain’s “draconian” laws. That word “humiliation” seems more apposite than ever.