Dear Lord Mawhinney
Your Committee has established from many witnesses, including from the Secretary of State, that the Draft Bill amounts to “mere codification” of the law, rather than significant reform. Witnesses on all sides have expressed concern that codification without reform will either achieve little or complicate the law of libel since established common law defences will be run in parallel with the new statutory defences.
All three main political parties committed to libel law reform (not codification) in their manifestos at the last general election, and this is what the Government stated its intention was. The political consensus for reform and the support across civic society mean that the Draft Bill presents a unique opportunity to overhaul our libel laws. It must not be wasted on a partial codification of the existing common law.
We would like to emphasise, whilst you are drafting your report, our support for the three priorities for reform.
1. A public interest defence (clause 2) that reduces the inhibition of free speech on discussion of matters in the public interest.
The existing Reynolds defence has not been of practical use for authors, scientists, NGOs, and citizen journalists. We need a defence that is not ‘mere codification’, but which protects the public interest so citizens can defend themselves unless the claimant can show they have been malicious or reckless.
2. A strong test of harm (clause 1) that reduces the chilling effect of trivial claims.
We need a strong hurdle that strikes out claims unless the claimant can demonstrate serious and substantial harm and that they have a real prospect of vindication. This would deter use of the law to silence legitimate criticism while allowing claimants damaged by defamatory statements to bring a case.
3. A restriction on corporations’ ability to use the libel laws to silence criticism (consultation issue).
There is not a level playing field between individuals and well-resourced corporations in libel. Whilst corporations have plenty of ways they can vindicate their reputations (including using malicious falsehood, through libel actions by individuals, using anti-competitive practice law, or obtaining a declaration of falsity), they do not suffer the psychological harm that individuals do. Non-natural persons’ ability to sue in libel should be restricted to cases where they can show both financial harm and malice/recklessness.
These three concerns above are echoed by the UN Human Rights Committee and the Culture, Media and Sport select committee.
Signed:
Simon Singh, science writer, defendant BCA v Singh
John Kampfner, CEO Index on Censorship
Jonathan Heawood, Director English PEN
Tracey Brown, Managing Director Sense About Science
Dr Evan Harris, Libel Reform Campaign
Lord Macdonald of River Glaven QC, Warden-elect of Wadham College Oxford
Alastair Brett, Director Early Resolution CIC
Dr Eric Metcalfe, Director of Human Rights Policy, JUSTICE
Robert Dougans, libel lawyer, Bryan Cave LLP
Martyn Hocking, Editor-in-Chief, Which?
Justine Roberts, Co-founder & CEO, Mumsnet
Charmian Gooch, Director, Global Witness
Professor Colin Blakemore, President, Association of British Science Writers
Connie St Louis, Chair, Association of British Science Writers
Andrew Motion, Poet Laureate 1999 – 2009
Nick Ross, broadcaster
Ian Hislop, Editor, Private Eye
Dr Ben Goldacre, medical researcher and defendant Rath v Goldacre & the Guardian
Dr Peter Wilmshurst, cardiologist and defendant NMT Medical v Wilmshurst
Hardeep Singh, defendant His Holiness v Singh
Professor Francisco Lacerda, Fellow, Royal Swedish Academy of Sciences, victim of English libel law
Professor Stephen Curry, biophysicist and science writer
Dr Andrew Lewis, Quackometer.net