A "good" bill but government is yet to tackle ISPs and corporations

Yesterday’s  Defamation & Privacy industry conference neatly coincided with the publication of the government’s draft defamation bill, in time for the final panel to dissect and critique it after lunch.

Tracey Brown, director, Sense About Science, and part of the Libel Reform campaign, welcomed the bill’s content while expressing caution over certain elements, for example Section Two proposals for the “Responsible publication on matter of public interest”.

“My first reaction is that we need to look again under [section] Two, items A-H, which I think still represent hurdles which the court may use as a checklist before making a defence available. I am quite concerned about that — [it] may really limit the availability of the defence for citizen journalists.”

“I’m really disappointed that corporate claimants haven’t been addressed,” she added. “The bill is yet to address ISPs and the internet in a forceful way.”

Sarah Jones, head of litigation, BBC said she was pleased to see jury trials going because “a lot of preliminary issues you would like to have answers to have to be left over to trial, and for the defendant that could be the difference between being prepared to defend and not.”

On the back of that, she said, there was a new procedure for early determination of questions, which would have otherwise been left to a jury. “On the downside, of course, that may mean there are a lot of satellite applications knocking around, that perhaps otherwise we wouldn’t have seen, I don’t know.”

Pia Sarma, head of legal at the Times, said she was glad to see jury trial issue tackled. Fair comment, as a more “subjective” defence was her main concern, leaving questions still to be answered, such as how a statement of opinion will be established. She wasn’t convinced it mattered whether it was called honest opinion or honest comment.

For Justin Walford, legal manager at the Sun, juries had been a “luxury in the past” which vastly added to costs, so he was pleased by this reduction in costs, but asked for clarification about what conditions would require a jury and at what stage it would be decided. He questioned how the “new procedure for defamation cases” would work. Would it be possible to arbitrate some matters before proceedings were issued, or rather than having to go to a High Court hearing? Issues could be decided early without “wasting huge amounts of time pleading justification pleas to different meanings”.

John Kampfner, CEO, Index on Censorship, while disappointed in the omission of corporations and ISPs, said he saw it as a “good bill” and a good starting point. Section seven of the draft bill, addressing Jurisdiction, is very important, and would deter cases of libel tourism, he said.  “The courts must in the future be satisfied that England and Wales are the most appropriate place, not just equivalent, but the most.”

In two fell swoops, by correcting the body of law and dealing with jurisdiction, “this most important area, and one of the greatest symbolism, hopefully will have been tackled.”

The Government’s draft defamation bill, published yesterday:

Draft defamation bill