Does the recent draft bill for libel reform go far enough to change the status quo?

Too much expectation can sometimes be a bad thing. Take libel reform. Given that campaigners have for years sought substantive changes to defamation laws, the emergence last week of a draft bill delivering reform should have been a good thing. Instead, the reforms have managed the neat track of leaving many practising lawyers grumbling that it merely codifies current case law (a debatable point) while supporters of the status quo have howled with indignation.

Yet some of the claims of the bill's insignificance are surely overdone. Key provisions include introducing a substantial harm test as a pre-condition for libel claims, which proponents argue will weed out weaker actions at an early stage and prevent aggressive claimants from abusing the system.

The bill also contains a single publication rule, a reform for the internet age that would only allow claimants to pursue the first publication of a defamatory statement. There is also a provision to limit so-called libel tourism, the rare but highly controversial practice of foreigners bringing libel claims with dubious connections to these shores. The bill also looks set to abolish jury trials for libel unless specifically allowed by a judge.

Taken as a whole, it represents a pretty substantial package of measures. Indeed, Reynolds Porter Chamberlain's (RPC's) veteran defamation partner David Hooper welcomed the "radical changes" in the bill as an attempt to redress the balance towards free speech.

Hooper's colleague at RPC, Keith Mathieson, adds: "As someone who acts exclusively for media defendants I'm fairly happy on their behalf, in particular about the proposed abolition of juries, which will provide greater certainty, and the substantial harm provision. It seems right to me to bring defamation in line with other torts where it's necessary to prove that harm has been suffered."

But it is not as simple as that. As has been noted, the challenge of libel reform is how to manage the inherent imbalances that the law seeks to address: extreme cases cited as pros or cons in the context of libel usually involve powerful media companies defaming individuals of limited means or rich claimants using their resources to put pressure on small publishers, bloggers or individual writers.

Finding a way of preventing excesses in both regards is notoriously difficult, and many argue this bill will have only limited success in this regard, though a clearer public interest/free speech test than the draft lays out would be one possible means and would probably remove the need for the call from campaigners to block corporations from being able to pursue libel claims.

Many also argue that the real issue with libel is not the law itself but that in practice it has become too expensive to pursue in the UK, which reduces access to justice and allows rich claimants to tactically use costs as a weapon. It could be that planned reforms to the civil litigation funding in the wake of last year's Jackson review will have as much impact as this bill.

After all, costs issues have already dictated the development of libel, as less generous awards in recent years have led to a widespread decline in the level of defamation work. Many practitioners are focusing on other more fruitful areas, like the emerging field of privacy law. As Farrer & Co's Richard Shillito comments: "I don't think it is too easy to bring a libel case, but it is inordinately expensive and that has serious consequences, both for individuals and smaller publishers. This bill alone won't cure the problem – it's the procedure, including the costs regime, that also needs to change."