Under questioning by the scrutiny committee today justice minsters said the Government’s draft defamation bill is simply a codification of existing law: this means that the draft bill does not deliver the reform they promised.
The scrutiny committee will make recommendations to ministers on how to deliver a bill that offers real reform. They need to hear your thoughts on where the draft bill doesn’t yet protect writing on matters of public interest for scientists, medics, NGOs, bloggers, editors and publishers.
There are several areas that the draft defamation bill falls short. In particular the substantial harm test (Clause 1), the public interest defence (Clause 2), addressing the ability of companies to sue in libel and the internet (both consultation issues not included in the draft bill).
The law chills speech on matters of public interest and expressions of opinion on matters in the public realm. We need a strong public interest defence, which would protect writing by scientists, medics, NGOs, investigative journalists and online commentators. The draft Bill includes an approximate codification of the common law Reynolds defence. The Reynolds defence has been shown to be very uncertain for most writers as the demands it makes to demonstrate ‘responsibility’ are impractical for many contemporary publishers, scientists, and NGOs. We believe that this could be addressed, where genuine public interest can be demonstrated (rather than merely statements which may interest the public), and where any errors of fact are promptly corrected, by shifting the burden of proof to the claimant to prove the defendant acted recklessly or with malice.
The law allows trivial and vexatious claims. The bill has a proposal that there should be a test of harm before a case can go to court. We think this is a great idea, but the test needs to be stronger to make sure that anyone threatened with libel will have the confidence to stand up to bullying and trivial claims. We think bullying claims will be deterred by making the first test of whether a case can precede a test of ‘serious and substantial’ harm.
The law does not reflect the nature of 21st century publication. The draft does not tackle the problem that online intermediaries, such as web-hosts, which are neither authors nor traditional publishers, are forced to censor material for fear of liability. Currently a threat to intermediaries often results in blogs or scientific papers being taken down from websites, because the intermediary has no way of knowing the facts of the matter. We want to see a system that requires claimants to contact the primary author first, before intermediaries can be asked to take material down.
The law is used by corporations and other non-natural persons to manage their brand and to close down criticisms of their products and behaviour. This is legal bullying and there are other ways companies can respond to criticism they think is unfair.