On 15 March the Government made good on a manifesto commitment of both coalition parties to act on libel reform, unveiling a draft Defamation Bill for consultation until 10 June.

Key provisions in the Bill include:

- a new requirement for claimants to show they have suffered, or are likely to suffer, 'substantial harm' before they can sue

- the abolition of jury trials in libel cases unless specifically authorised by a judge

- a new 'single publication rule' – meaning a cause of action accrues only from initial publication rather than each new publication

- the creation of a statutory public interest defence, including a new 'reportage defence' to cover responsible coverage of a dispute between two parties

- new provisions to counter so-called 'libel tourism' that will require judges to consider whether claims against persons not domiciled in the UK or the European Union should be heard by a court in England and Wales. This would not affect claims brought by foreigners against UK publications.

The Government was quick to hail the Bill as an attempt to support free speech, with Justice Secretary 
Kenneth Clarke citing the "chilling effect on scientific and academic debate, and investigative journalism" of the current laws. Deputy Prime Minister Nick Clegg, who in January publicly derided domestic libel laws as a "laughing stock", went further, arguing that the Bill "underlines the coalition Government's commitment to civil liberties and to a healthy, open debate".

However, there is widespread agreement from practitioners that the measures contained in the Bill are relatively conservative and largely reflect proposals issued last year in a private members' Bill by Lord Lester, 
a Liberal Democrat peer.

The Bill also in many areas incorporates how the law has developed in recent years. This stance is particularly apparent in the creation of the new defence of 'responsible publication on matters of public interest' – which largely recasts the Reynolds defence into primary legislation – and in the adoption of the common law defence of 'fair comment' as 'honest opinion' (the Supreme Court had already renamed it 'honest comment' last year in Spiller v Joseph). By the same token, creating a statutory defence of 'truth', in favour of the common law's 'justification' is viewed as an entirely cosmetic move. And in some respects, Lester's conception of a beefed-up public interest defence went further than the Government's Bill.

The reason for this timidity is viewed by lawyers as expediency – with the Ministry of Justice (MoJ) under considerable pressure to produce legislation quickly, the Bill hands the Liberal Democrats a cost-free policy victory at a point in which the coalition Government is facing mounting tension between its 
two parties.

Even the substantial harm test – arguably the most important reform in the Bill – is seen by some as reflecting moves by the courts to clamp down on trivial claims, notably following the "threshold of seriousness" test that Mr Justice Tugendhat applied in the 2010 case Thornton v Telegraph Media Group. In sum, the Bill unquestionably eschews structural changes to defamation in favour of relatively modest amendments and the codification of case law.

Critics of the Bill – in particular lawyers acting for claimants – go further, arguing that fiddling with well-established case law will lead to years of tactical litigation. Nigel Tait, a partner with Carter-Ruck, comments: "The Defamation Bill will mean five to seven years of many litigants running up huge legal bills to work out what the various reforms mean in practice. The Bill is a muck-rakers' charter in some respects."

While many reject Tait's stance, there is agreement that the 
substantial harm test is one area in which well-funded claimants could test the Bill's limits – in the process running up large costs. Nevertheless, the consensus view is that the legislation in isolation will probably be neutral on costs.

However, all the focus on the conservatism of the legislation should not obscure the widespread recognition that it does tilt the balance substantially towards the protection of free speech and supporting the interests of the media and writers in general. It is true that some of the measures will impact on only a very small number of cases; jury trials in libel have already become extremely rare and actions that could be classed as libel tourism have only ever constituted a tiny minority of writs. But, the (surprisingly popular) phasing out of juries is expected to reduce uncertainty and costs, while the libel tourism provisions should give the courts more scope to clamp down on cases in which aggressive tactics have been used – arguably with considerable damage to the reputation of the UK's legal system. The single publication rule also enjoys widespread support as a sensible update of the law to reflect the realties of publishing in the digital age.

keith-mathieson"[The Bill] is a good thing," says Reynolds Porter Chamberlain partner Keith Mathieson (pictured). "I am particularly in favour of abolishing juries as that will make cases more predictable. Codification is a good thing because it will make the law easier to understand. There may be some costs around the new provisions, particularly with the substantial harm test, but it is welcome. It will bring defamation in line with other torts."

The downside to this piecemeal approach is that the Bill has largely failed to tackle the power imbalances that define defamation, meaning that rich claimants can use libel law and its associated costs to intimidate writers with limited resources and, conversely, powerful media organisations can tarnish the reputation of individuals who have little chance to gain redress.

Indeed, the gravest criticism of the Bill is that it has failed to address the huge costs of libel – the one issue that virtually all lawyers agree is a fundamental problem with the status quo and why many expect the Government's overhaul of civil litigation costs to have more impact than the Bill itself.

"The Defamation Bill is not radical enough – the real issue that it has not dealt with is access to justice and costs," argues Alastair Mullis, head of the law school at the University of 
East Anglia.

Those hoping for a more imaginative approach have often called for the creation of a cheap, fast-track procedure that is focused on securing non-financial remedies, leaving a full court process only for the most serious and complex cases.

One notable example of such an approach is put forward by Mullis 
and Andrew Scott of the London School of Economics in a recent paper, which proposes the creation of a much-simplified procedure that could be administered by the Tribunals Service. This fast-track process would only offer damages up to £30,000 – and then only in cases of 
exceptionally serious psychological harm – while cost recovery would be severely limited.

But with little prospect of the MoJ revisiting the Bill in any substantive form, those hoping for more radical moves have seized on the fact that the draft Bill has put a number of potentially far-reaching proposals out to further consultation.

Perhaps most importantly, the MoJ has asked for views on whether there should be steps to address inequality of arms in defamation proceedings 
by introducing specific restrictions 
on the ability of corporations to 
bring defamation actions. Such a move – strongly supported by libel reform campaigners – would 
provoke opposition among commercial lawyers who argue that companies increasingly trade on reputation and must have means to correct unfair attacks.

"Companies should be able to defend their reputation," says David Engel, a partner at Addleshaw Goddard, which often acts for companies against the media. "In some sectors your reputation is absolutely critical to your survival. It's not realistic to expect that they shouldn't be able to protect themselves." There is broader support, however, for limits on the damages a company can claim.

The MoJ is also consulting on several other key issues, including whether to give secondary publishers – such as internet service providers or magazines which post reader comments online – additional protection in view of the rising importance of online publishing. 
The Government has also floated the idea of a new court procedure to resolve key preliminary issues quickly – in theory cutting costs. Detractors claim it could front-load costs, while defenders believe such a provision may be the best chance to usher in some form of fast-track procedure for libel.

Given that the campaign to secure libel reform came out of nowhere to quickly gain widespread political support, and with the Liberal Democrats wanting more policy concessions in the wake of this month's failed attempt to win voting reform, more radical measures could yet reach the Bill by the time it receives Royal Assent.