Libel reform – a hack's proposal
What better way to relax after a hard week's sweating over an extended focus on libel and privacy law than listening to The Guardian's editor give a lecture on libel reform? A minor streak of obsession with the topic had set in by the time I sat down in the lecture theatre at City University on Tuesday to hear from Alan Rusbridger. As you'd expect, he put the position for libel reform, freedom of speech and concern over privacy law somewhat better than most of the self-serving fluff the media has served up in recent weeks.
May 13, 2011 at 08:09 AM
8 minute read
What better way to relax after a hard week's sweating over an extended focus on libel and privacy law than listening to The Guardian's editor give a lecture on libel reform? A minor streak of obsession with the topic had set in by the time I sat down in the lecture theatre at City University on Tuesday to hear from Alan Rusbridger. As you'd expect, he put the position for libel reform, freedom of speech and concern over privacy law somewhat better than most of the self-serving fluff the media has served up in recent weeks.
Most strikingly, he made the case that laws governing libel, privacy, free speech and media regulation are fundamentally linked and cannot be addressed separately. Rusbridger went as far as to float the idea of a bargain between the media and Parliamentarians that any step towards tougher privacy laws should be explicitly balanced with measures to protect freedom of information and libel reform (it was a touch ambiguous whether that reflected a historical position or current thinking).
In making the link with media ethics and the mounting scandal of phone-tapping he was critical about self-regulation, but still rejected statutory regulation or the abolition of the Press Complaints Commission, a position that didn't satisfy. He was also broadly supportive of the new Defamation Bill.
A couple of observations: Rusbridger, like many in the libel reform camp, seems to rather skirt over the access to justice implications of the Defamation Bill and the Jackson-inspired reforms of civil costs. I also rather got the impression on hearing the paper's war stories – most of which represent laudable attempts to stand up for public interest journalism against aggressive litigants – that he was talking about an era than has, to a considerable extent, already passed. Many of the cases Rusbridger cited happened in the 1990s; looking at more recent cases and talking to practitioners active across the different constituencies in libel law, there is a clear feeling that the large awards have been curbed and that judges have struck a considerably more liberal tone in recent years. That shift should be considered when looking at libel reform to avoid legislating for a world that has already changed.
The other striking element to the debate came in the Q&A session from Evan Harris, the writer and former Liberal Democrat MP who has been a prominent libel reform campaigner. Having initially welcomed the Defamation Bill, Harris said he had become much less impressed on closer inspection – giving the Bill only three and half out of 10, against a first-response mark of six.
That's understandable. The more you look at the Defamation Bill, the more what first seemed to be a sensible if conservative effort underwhelms. The protections for free speech are too limited, the public interest defence it proposes is unwieldy, and not enough work has been done on separating fact from comment. Worse, the Bill fails to deal with the inequality of arms that defines libel law – it just tilts the balance a little in the favour of the media at the expense of access to justice. The reforms of civil litigation will have a similar impact. The combined effect will still leave many of the cost issues unaddressed. It's hard to see how the Defamation Bill is worth the effort in its current form. But anyone can criticise without offering anything constructive in its place. So for what it's worth (which isn't much) – here are my suggestions for libel reform:
Bring in a fast track
The one thing that everyone agrees is that cost is the major issue in libel. Domestic libel laws aren't that tough – they're fairly mainstream by international standards – it's the high costs involved in litigating in this country that causes the huge potential for abuse and denies access to justice. Deal with costs and you solve a host of problems. That requires a cheaper procedure – a model that has been put forward by far more informed people than I.
The idea is relatively straightforward: create a fast-track model to handle all but the most serious cases, which could be run by a body like the Tribunals Service. This would focus on non-financial remedies such as corrections and apologies while imposing severe limits on costs recovery and offer only very limited damages. This would still allow the most serious cases to be flipped up to the High Court.
Ideally, you could also take account of whether there was a good faith attempt to put an error right rather than the current 'you've crossed the line, so you're liable' dynamic, which is what turns libel into a Kafkaesque word game (the offer of amends procedure under the 1996 Defamation Act is widely credited with helping to curtail lengthy libel battles). Alastair Mullis and Andrew Scott – respectively of the University of East Anglia and the London School of Economics – have mapped out this concept in a recent paper and their ideas are worthy of investigation.
If you don't have a fast track, then you have to get creative on costs
It's boring, it's technical, it still matters. In the absence of a low-cost procedure, you have to address the issue of inequality of arms. Currently-proposed cost reforms look set to return libel to being a rich man's game. (Sections of the media promoting libel reform have been rather cavalier about access to justice – just because The Guardian isn't likely to be defaming those of limited means, it doesn't mean other, more aggressive tabloid publications won't be).
Qualified one-way costs shifting (QOCS) was never a term in danger of exciting passionate debate, but the concept as outlined in the Jackson report has important implications in allowing individuals a legal means to hold larger entities to account. Yet the Government is set to bring in a regime of QOCS for personal injury but not defamation. And while no win, no fee deals in defamation have led to some dodgy practices, in isolation ending their recoverability means fewer individuals on the receiving end of heavy-handed actions will be able to get defence representation.
Carter-Ruck may be the villain for free speech campaigners (that's showing my age, it's probably Schillings now) but the firm has defended a number of academics and writers under conditional fee agreements (including in high-profile claims against the journalist Hardeep Singh and Danish radiology professor Henrik Thomsen).
Let companies sue, but with limits
Companies trade on reputation, and there's no reason why it should be open season on them. But they often have huge financial resources which can easily lead to bullying litigation. The compromise would be to allow them to sue but to heavily restrict their ability to secure costs or damages. Even better would be if they were forced to go through a fast-track procedure and had to achieve a higher test – such as proving actual damages – before they can proceed.
Strengthen and simplify a public interest test
Reynolds didn't work very well – the eight-point public interest defence outlined in the Defamation Bill isn't likely to do much better, especially as it will exist alongside the common law counterpart. We need something shorter that gives as much weight to the public interest value of stories as to the rigour of reporting. The honest opinion defence should also make more distinction between fact and comment rather than applying similar notions to news reporting. The underlying issue is that comment should have a higher threshold to be actionable than fact in defamation proceedings.
Accept self-regulation of the press isn't happening
It's not that press regulation isn't working, more that it doesn't exist in any meaningful sense for print media. There are two obvious options: make press regulation statutory or just abolish it altogether. But let's end the pretence.
Toughen up libel tourism provisions
The argument advanced by many lawyers that libel tourism is so rare that it doesn't need to be prohibited doesn't fly. Many things happen rarely and we still legislate to prevent them – I have no desire to avoid prohibiting bestiality on the basis that it's too unusual to bother. Libel tourism is an abuse, and it's globally embarrassing for our legal system. What is currently proposed in the Defamation Bill is too limited.
Accept privacy law and free speech are linked
One way or another, privacy law is already a reality, whether derived from the Human Rights Act or if the Government makes good on its current noises about bringing in a specific Bill (though you'd think they have enough other stuff to worry about). Rusbridger is correct to talk about a bargain on this front. A little more protection for privacy in personal matters in return for more respect for free speech and public interest discussion (whether furthered through journalism, academic debate or blogging) seems a good deal.
Anyway, that's me done on libel reform. Back to the City.
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