6 Apr 2010 | Uncategorized
This article originally appeared in Media Guardian
The most disparaged parliament in living memory may end its life this week in characteristic style. A small band of refusenik MPs are planning to stay behind to prevent one last piece of business from being passed.
These are plans, presented by Jack Straw, the justice secretary and a latter-day convert to libel reform, to limit the success fees won by avaricious legal firms in cases conducted under conditional fee agreements (CFAs), better known as “no win, no fee”. In one fell swoop, and somewhat hastily, Straw has sought to cut back the costs that law firms can charge the other side after successful cases – from 100% to 10%.
Reform of CFAs has been an important part of our broader campaign with English PEN and Sense about Science to change England’s hideous libel laws, which are skewed towards the rich and powerful and have helped to chill free expression in the UK and around the world. The issue is complex. The original idea behind “no win, no fee” was admirable, allowing ordinary and often impecunious people either to defend themselves or to sue for damage to their reputations. However the system is open to abuse, with law firms cherry-picking risk-free cases and wealthy individuals using CFAs to bully people into submission.
Last week, it was assumed that Straw’s plans would go through easily. But this did not take into account the small number of MPs nursing resentments over the way the media have treated them during the expenses scandal. Several of them, led by Tom Watson, a close ally of Gordon Brown, have won defamation cases against newspapers. They belong to the old school that sees the fourth estate as a feral beast needing to be tamed, rather than understanding the extent to which robust investigative journalism and fair comment have been silenced in recent years. They also ignore the significant impact of costs on NGOs investigating corruption, as well as on scientists, academics, publishers and authors.
If these malcontent MPs succeed, they will have made a small dent in the bigger campaign. The battle for free expression in the UK has become attritional. The forces of resistance have begun to organise, and they are lobbying hard in parliament, particularly targeting the Tories. While Labour have belatedly joined the Lib Dems in committing themselves to the principle of libel reform, the Tories remain unclear in their intentions, with several key figures enjoying close relations with the law firms at the heart of the problem.
Yet for every setback there is a cause for celebration. On Thursday, the scientist Simon Singh secured an important victory when the court of appeal ruled that his negative remarks about chiropractors were “honest opinion” rather than fact. In other words, he does not have to provide hard evidence to support his claims against the British Chiropractic Association. The specifics of the judgment are welcome. Arguably even more important is the language used.
In their ruling, the judges not only dismiss the arguments used by Justice Eady in his initial ruling last May. They point to broader ramifications. For nearly two years since publication of Singh’s Guardian article, they say: “it seems unlikely that anyone would dare repeat the opinions expressed by Dr Singh for fear of a writ. Accordingly this litigation has almost certainly had a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices.” That is a devastating indictment.
The judges go further, saying of Singh’s piece: “The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth.”
This ruling just may be part of a pattern. Already one or two cases that might have been brought by foreign litigants – using the UK, as ever, for what has come to be known as “libel tourism” – have been rejected on grounds of jurisdiction.
Judges are sensing the public mood and moving with it. Yet it could all unravel quite quickly with an incoming government asking for yet another review, giving time for the law firms’ lobbyists to cash in and wreck reform. The litigant companies will move back on to the offensive, sniffing their chance to regain lost ground, and lost profits. The battle for libel reform has barely begun.
John Kampfner is Chief Executive of Index on Censorship
19 Mar 2010 | Uncategorized
The divisive former Commons speaker Michael Martin returned to the spotlight yesterday in an effort to obstruct libel reform plans.
The Labour peer is attempting to use an arcane House of Lords tool to delay reforms that will limit the fees which lawyers can claim for successful “no-win, no-fee” defamation cases.
Justice secretary Jack Straw plans to reduce these success bonuses by 90 per cent, as he believes they produce a chilling effect that hinders freedom of expression and a free press.
However, Martin has tabled a “motion of regret” that will call for more consultation on the measures, which were due to come into force next month.
The Daily Telegraph reports:
“If Lord Martin’s attempt succeeds but no time can be found for the debate before parliament is dissolved for the election, the reform package will be lost.”
Martin himself is no stranger to spending thousands of pounds on lawyers’ fees.
In 2007, he spent nearly £20,000 of taxpayers’ money on legal advice from the libel specialists Carter-Ruck to challenge a serious of negative stories about him in the press. He also infamously used £150,000 of public funds to block the publication of MPs’ expenses under the Freedom of Information Act.
Martin, who became the first parliamentary speaker to be forced out of office for 300 years, is being supported by the pressure group Lawyers for Media Standards, who have threatened a judicial review of Straw’s plans. And yet, the group has faced its own legal problems in recent weeks, according to the Guardian diary:
“Libel lawyers have written to Jack Straw complaining about his plans to reduce their so-called “success fees” in cases against the media. They approached him as “Lawyers for Media Standards”, which even he must have thought sounded quite impressive. But not so Companies House, which told them this title sounded far too official and regulatory to be allowed. They’ve now had to re-christen themselves “Lawyers for Media Rights”, though some say they should have done with it and call themselves “Lawyers for Huge Fees.”
Blogger and author Richard Wilson did a little digging on the group. Turns out the firm behind it represents the British Chriropractic Association in its action against Simon Singh. Funny that.
5 Mar 2010 | News and features
The controversial far-right Dutch MP Geert Wilders arrived in the UK today to attend a screening of his anti-Islam film Fitna at the House of Lords. The 46-year-old leader of the Freedom Party was invited to London by the leader of the UK Independent Party (UKIP) Lord Pearson of Rannoch. The 17-minute film, which focuses on Islamic terrorism and depicts the Koran burning and provoked widespread anger around the world and demonstrations are expected in Westminster this afternoon.
Wilders was due to enter the country last February, but was detained on landing at Heathrow airport and ordered to return to Amsterdam by the then Home Secretary Jacqui Smith, who said his presence had the potential to “threaten community harmony”.
Wilders has since had this ban overturned and seen his popularity rise in the Netherlands. In last week’s local elections, the Freedom Party polled second in The Hague, one of the country’s largest cities and the seat of the Dutch government.
Wilders is currently on trial in the Netherlands for fomenting hatred and discrimination and if convicted could face two years in prison.
Oliver Kamm, leader writer for The Times, writing for Index on Censorship earlier this year argued that Wilders should not be charged for expressing his views and described the Dutch authorities’ decision to prosecute as a “monstrous abuse of power”.
Allowing ideas to die in place of their adherents is a mark of a civilised society. It is not hyperbole to say that in the defence of the unlikely figure of Geert Wilders lies also the defence of western civilization.
Wilders is holding a press conference with UKIP at 12:30.
24 Feb 2010 | Comment, Uncategorized
In a major report, MPs’ have urged the government address the “mismatch in resources between wealthy corporations and impecunious defendants”, to find ways of limiting the cost of libel actions and to end the “embarrassment” of libel tourism. The select committee also made a series of recommendations on improving the self-regulation of the Press, increasing the number of lay members on the Press Complaints Commission and giving the regulator powers to fine or suspend publications.
But how do experts see the proposals?
Emily Bell is director of digital content for Guardian News and Media
I’ve mixed feelings about the report, on one level its fantastic, it is a vindication of the Guardian’s investigation into the phone hacking, and it also makes some sensible suggestions on libel. As a web editor I have concerns because the report is rooted in old media, in newspapers. The committee’s web comments proposals underestimate how onerous and expensive a moderation operation is to run. The proposals could damage an already fragile economic model. How would the committee define a publication? Would bloggers be forced to moderate comments on their site, will this affect networks like Facebook.
The real problem is that the sands seem to constantly shift beneath us as individual members of the judiciary set legal precedent. At least the committee’s proposal for a one-year time limit would remove the dangers of the newspapers archives counting as continuous publication.
Alan Rusbridger is Editor of the Guardian
I would have been happier if the committee had gone the Australian route and barred larger corporations for suing for libel except where deliberate malice could be shown. But, failing that, I think it would certainly be an improvement for the burden of proof to be reversed, and for a capping of costs.
Camilla Wright is founder and Editor of Popbitch
The report seems to be making all the right noises to fall into step with current fashion without any making any real attempt to guide how any effective change might happen. The call to overhaul libel laws, particularly in relation to costs and libel tourism obviously reached a tipping point some time ago, so the House of Commons is really just playing catch up, although the suggestion that journalists’ burden of proof might not be so onerous in cases of corporate defamation is very interesting.
In respect to privacy issues – such a hugely important area of law since the rich and famous started using Article 8 to keep media noses out of any parts of their lives they didn’t want – there’s nothing substantive coming out of this report except the point very firmly made that parliament wants nothing to do with legislating to sort out the current freedom of expression vs right to privacy bunfight.
Where the report makes some very hardline recommendations is on forcing newspapers to take responsibility for user-generated material – most specifically comments. It smashes apart the convention that this responsibility only really kicks in when the newspaper has been made aware of a complaint and instead puts the onus on the newspaper to make sure that comments contain nothing “offensive”. Well, one person’s offensive is another person’s joke or discussion point, so for me this would sound the death knell for online comments. While your first thought might be “Who would miss them?”, by taking away such a simple mechanism for readers to debate and interact with the newspapers we might weaken the attempt to improve levels of trust between the public and media.
Lord Lester QC is a human rights lawyer and Liberal Democrat peer
I welcome the report in seeking to strike a fair balance between free speech reputation and personal privacy. I will introduce a private members bill to give effect to some of the committee’s recommendations.
Charmian Gooch is a founder and director of Global Witness
The tone and direction of this report is broadly welcome, and some of the specific recommendations are good. However it will be a challenge to make sure that the Government can follow up on the many recommended consultations. We face threats on a regular basis and so had hoped for more concrete recommendations to protect campaigning organisations working on public interest issues. The decision not to recommend mandatory pre-notification is welcome, however we are concerned that the ‘public interest’ test is not clearly defined and may enable corrupt dictators to obstruct our exposés into their dirty dealings. The sort of responsible, fact-based campaigning we do is under threat, and this report does not do enough to redress that. Without further concrete reform, some of the world’s most egregious individuals will still be able to exploit the justice system to launder their reputations and defend their continuing corrupt activity.
Andrew Scott is a senior lecturer in law at the London School of Economics
On privacy and libel, the report is quite the curate’s egg. On the down-side, the committee has bought a pup on the ‘libel tourism’ issue. The only context in which libel tourism is a concern is where it overlaps with the chilling effect wrought by abusive actions brought to silence relatively weak defendants. For such defendants, the key problem is a combination of sheer cost and personal hassle. It is surprising that the committee should seek to validate the lobbying success of American mass-media organisations which, under the guise of concern for impecunious defendants, have moved to insulate themselves at home from liability for damage to individual reputations caused by publications made abroad. The better route is to focus attention on libel costs and procedures in the hope of reducing the burdens faced by all parties, to contemplate changes to rules on internet archives and corporate standing, and to introduce the right for defendants to counter-sue where libel is misused to silence them. In many of these respects, the committee’s reflections are eminently sensible.
On the up-side, the report offers a robust defence of media freedom against the seductive logic that underpins the privacy-based insistence on prior-notification. While Max Mosley can be forgiven for not seeing beyond the end of his own nose, the rest of us must properly take into account the deleterious impact that his siren calls could have on public knowledge of important matters. Nonetheless, the committee is right to call for responsibility at the pre-publication stage, and heavy culpability for error if and when things go inexcusably wrong.
