This is cross-posted from Inforrm.
The Libel Reform Campaign is now in its second year. It has attracted widespread support with 50,000 signatures on its petition and the Coalition Government now committed to a Defamation Bill to “rebalance” free expression and the right to reputation. As regular readers will know, Inforrm has been critical of a number of the arguments put forward by the campaign (see our posts on the burden of proof, a damages cap, the multiple publication rule and on companies suing for libel).
In a recent article on the Index on Censorship blog, John Kampfner says of the Libel Reform Campaign that it “isn’t a ‘big media’ proxy“. This is an argument which – with his unfortunate tendency to go for the man and not the ball – he says is “based around law firms keen to maintain their profit margins”. We do not agree with this characterisation of the campaign. Although “big media” has, for its own obvious commercial reasons, jumped on the bandwagon, we do not argue that the Libel Reform Campaign is some kind of “front” for the national press.
On the contrary, it is obvious that bloggers, scientists and NGOs have real concerns about the use of the threat of libel actions to suppress publications which are critical of powerful vested interests. As is illustrated by a number of well known recent cases, an individual blogger or scientist will be very hard pressed to resist, from his or her own resources, a libel claim brought by a rich individual or a powerful corporation. Although there is a lack of proper evidence and research on the issue it is also clear that the law of libel has a “chilling effect” not just on the publication of false allegations (which is a proper purpose of the law) but also on the publication of the true results of research and investigation.
On the basis of arguments of this kind, the Libel Reform Campaign has arrived at the general proposition that the entire law of libel is flawed and requires radical recasting. We do not agree on the details of the proposed reforms. But there is a more fundamental point. Not all libel actions are brought by rich claimants against poor defendants. In many claims against the mainstream media the reverse is true – the imbalance of power is the other way, with an ordinary individual facing a rich media corporation. Assuming that the Government’s current proposals lead to the effective abolition of libel CFAs, an individual such as Robert Murat or Christopher Yeates (see Martin Moore’s recent post) will effectively be left without remedy against the large and powerful corporations which publish national newspapers.
In other words, perhaps the central issue is not the substantive law of libel at all, but rather the imbalance of power between particulars categories of claimants and defendants. Perhaps libel reform should be focussing on how to protect the interests of the less powerful – whether they be defendants or claimants. Perhaps would be useful, in the run up to the publication of the Government’s draft Defamation Bill what practical reform proposals could be made which would actually improve the position of the less powerful – whether the bloggers, scientists and NGOs threatened by “libel bullies” or the individuals whose reputations are trashed by irresponsible newspapers.
As an initial contribution to this debate we make three practical suggestions:
- rather than abolish CFAs (and recoverable insurance premiums), perhaps reform should focus on making them more reasonable and proportionate – and more widely available to defendants as well as claimants;
- instead of the general reform contemplated by Lord Lester’s Defamation Bill (and apparently, by the Coalition Government, see our post here) perhaps legislative reform should be aimed at providing focussed defences for scientists (see for example Godwin Busuttil’s revival of an old proposal about scientific journals), bloggers and NGOs.
- if the remedy of the “declaration of falsity” were to be introduced into libel law – perhaps with costs protection for non-malicious publishers of libels about corporations then this could preserve an appropriate balance between expression and truth, with false statements being corrected without huge costs risks for defendants.
This issue will be one of the topics discussed at the event at Gray’s Inn on Tuesday 11 January 2011. ‘Libel reform: in the public’s interest’ which will be chaired by Baroness Helena Kennedy. The panel includes Sir Charles Gray, Razi Mireskandari, Evan Harris, Zoe Margolis and Kevin Marsh. This is organised by INFORRM and the Media Standards Trust – you can find more details here.