The Report - RESTORING THE BALANCE

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BALANCING FREE SPEECH AND REPUTATION
RESTORING THE BALANCE
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RESTORING THE BALANCE

 

In the course of our Inquiry, we encountered the following complaints about English libel law:

1. In libel, the defendant is guilty until proven innocent

2. English libel law is more about making money than saving a reputation

3. The definition of ‘publication’ defies common sense

4. London has become an international libel tribunal

5. There are few viable alternatives to a full trial

6. There is no robust public interest defence in libel law

7. Comment is not free

8. The potential cost of defending a libel action is prohibitive

9. The law does not reflect the arrival of the internet

10. Not everything deserves a reputation

These concerns are held by a wide variety of authors, publishers, journalists, lawyers and new media practitioners. In each case, we have identified a means of restoring the balance between free speech and reputation, as follows:

1. In libel, the defendant is guilty until proven innocent

Because of the antiquated presumption of falsity, libel law requires the defendant to do all the heavy work of proving either the truth of their allegations; or that their publication constitutes fair comment; or that they were protected by some form of privilege – such as the absolute privilege of a parliamentarian, or the qualified privilege of some journalists. There is no requirement for the claimant to establish the falsity of the allegation; nor are they required to show that it has caused them any tangible harm or that the defendant has made any allegations recklessly or maliciously.

In order to bring a libel action, a claimant theoretically needs to have a reputation in the UK and to show that a statement is defamatory. However, it is very rare in practice for a court to reject a claim. With no requirement on the claimant to prove that their reputation has actually been damaged, their threat of a libel action, even if a bluff, can be enough to silence journalism that may be in the public interest. It is this, above all, which gives libel its unique chilling effect on free speech. In most other jurisdictions in the world, it is the claimant’s responsibility to show falsity.

To remedy this, we recommend that the claimant should have to demonstrate damage in order to bring a libel action. It will no longer be enough simply to claim that a reputation has been damaged, but it will be necessary to demonstrate that damage has been caused.

We also recommend that the claimant be required to provide evidence of falsity or unfairness when they bring a libel action. This reform would reverse the burden of proof, bringing English libel law up to global standards. We recognise that there are cases where it may be impossible for a claimant to provide evidence of the falsity of an allegation and in these instances the defendant may be required to bring evidence supporting the truth of what they have written.

We recommend: Require the claimant to demonstrate damage and falsity

2. English libel law is more about making money than saving a reputation

The chief remedy in libel should be an apology, not financial reward. The law supposedly exists to restore the claimant’s reputation, not to enhance their bank statement with hefty awards for damages. The courts should take the financial incentive out of libel law by capping damages at £10,000. If a claimant wishes to demand more, then they would need to prove material damage such as loss of earnings.

We recommend: Cap damages at £10,000

3. The definition of ‘publication’ defies common sense

The definition of ‘publication’ in libel is no longer appropriate for the age of global communication and the internet. Each newspaper sold or website hit currently constitutes a new libel – the so-called ‘multiple publication’ rule – a principle that renders online newspaper archives uniquely vulnerable to libel actions. The rule dates from the 1849 Duke of Brunswick case, in which the Duke’s manservant travelled from Paris to London in order to purchase a copy of a 17-year-old journal in which the Duke belatedly found himself to be defamed and consequently sued for libel.

We welcome the government’s consultation on single publication and believe that the introduction of a single publication rule would bring online publication in line with print, ensuring that no libel action can be brought a year after publication. We recommend that the Duke of Brunswick rule be abolished.

We recommend: Abolish the Duke of Brunswick rule and introduce a single publication rule

4. London has become an international libel tribunal

The multiple publication rule, coupled with the global reach of the internet, has contributed to the phenomenon of forum shopping and libel tourism. A book that would once have been available only in the United States can now be bought here. An online publication or article can be downloaded anywhere. The number of cases that can be, and are, brought to the English courts has multiplied as a result. This exposes the English legal system to abuse by claimants with no reputation to defend in this country.

We propose that libel cases should be heard in this jurisdiction only if it can be shown that at least 10 per cent of the total number of copies of the publication distributed have been circulated here. Cases relating to publication on a foreign internet site should only be heard if the article in question has been advertised or promoted in England and Wales by or on behalf of the defendant. This reform would address the international embarrassment of the UK being used as an international libel tribunal – and would introduce a more equitable system for hearing libel cases in an age of global communication.

We recommend: No case should be accepted in this jurisdiction unless at least 10 per cent of copies of the relevant publication have been circulated here

5. There are few viable alternatives to a full trial

Having launched a libel action, claimants currently have little interest in mediation or arbitration. They have the financial incentive of seeking damages in an open trial or settling out of court. Because of the costs of defending a libel action, and the onerous burden of proof in a trial, defendants are unwillingly inclined to settle. The Press Complaints Commission may resolve some potential libel cases, but this option is not open to book publishers, bloggers and NGOs. The absence of any credible forum in which complaints may be heard turns libel into an all-or-nothing decision for most defendants.

We propose that mediation is made a requirement for anyone bringing a libel action, leading to binding arbitration. We also recommend further reducing the financial costs of litigation by making it possible for a defendant, where appropriate, to issue a declaration of falsity. This would allow redress to injured parties and require minimum involvement of lawyers, along the lines of an employment tribunal. A dedicated libel tribunal could reduce the immense costs of a libel trial. It would also have the power to determine meaning and to establish fair comment as a defence at an early stage.

We recommend: Establish a libel tribunal as a low-cost forum for hearings

6. There is no robust public interest defence in libel law

Although Reynolds privilege and the subsequent ruling in Jameel have gone some way to providing journalists with a public interest defence, it has not been applied widely enough beyond investigative journalism.

We would like to see a stronger public interest defence that also extends to journalists and writers who may not appear to be obvious candidates for a Reynolds defence. Such a reform would significantly strengthen the right to free expression in the UK.

The court should also take into account the capacity of the defendant to follow all the steps required for a Reynolds defence. Defendants writing about totalitarian regimes, for instance, may not be able to corroborate their reports safely. Journalists and others should be allowed to publish statements which they believe to be true and in the public interest.

We recommend: Strengthen the public interest defence

7. Comment is not free

There needs to be a broader and more relaxed definition of what constitutes fair comment in order to provide greater protection for free debate. At present, defendants have to jump through too many hoops for their publication to qualify as ‘comment’, while judges tend to be overly analytical in their approach. The courts should be looking at the context in which a piece is published in order to determine whether it is intended or likely to be read as a statement of fact, or one of comment. Today’s readers are perfectly capable of distinguishing between statements of fact and comment as they navigate the media-saturated environment. The courts should recognise that robust debate is essential to the democratic process and should be allowed to flourish.

We recommend: Expand the definition of fair comment

8. The potential cost of defending a libel action is prohibitive

Because of the high hourly rates of many libel lawyers, coupled with the 100 per cent uplift that some lawyers impose upon the successful completion of a case where Conditional Fee Agreements (CFAs) are used, defendants may face extortionate legal bills for the other party. Coupled with their own costs – which even if successful they may have no hope of recovering from the other party – this can make a trial impossible to contemplate.

Conditional fee agreements were introduced in order to secure wider access to justice. The irony is that so far as libel is concerned, CFAs have diminished access to justice for newspapers, publishers, NGOs and writers who cannot afford to defend a libel action against a claimant lawyer acting on a CFA.

We welcome the government’s consultation on costs, but believe that the measures do not go far enough. We propose abolishing the recovery of success fees from losing defendants in libel cases and mandatory cost-capping of base costs to limit the level of fees.

Libel insurance costs also deter many publishers from contesting a claim. Knowing that their premium will reflect any costs incurred by their insurers, publishers may be extremely unwilling to contest a libel action, and are once again inclined to settle out of court. Meanwhile, claimants are currently able to take out ‘After the Event’ (ATE) insurance in the knowledge that if their case is successful, their premium will be paid by the losing party. We suggest that ATE premiums should not be recoverable.

We recommend: Cap base costs and make success fees and ‘After the Event’ (ATE) insurance premiums non-recoverable

9. The law does not reflect the arrival of the internet

A single publication rule, as proposed above, would at long last recognise the complete transformation that has taken place in the media landscape since the mid-nineteenth century. But there are other urgent areas that need to be addressed to allow free speech to thrive online.

Because of the nature of the internet – in which defamatory comments may be posted without the knowledge of the website publisher – it is essential that libel law is adapted to meet the new challenges.

While the author will always be liable for his or her writing – on a blog or elsewhere – the host should not be liable when material on their site is from a third party. This is an important distinction from traditional publishing and would be an enlightened reform, recognising that internet publishers do not always exercise editorial control but should be treated more like distributors.

We also propose exempting online interactive chat from liability. Action should only be brought with proof of special damage.

We recommend: Exempt interactive online services and interactive chat from liability

10. Not everything deserves a reputation

We propose limiting the ability of corporations and associations to sue. Australia has already successfully recognised the damaging impact of allowing large corporations to sue for libel without restriction and has introduced a law that prevents corporations with more than ten employees from suing. It would still be possible for an individual working for the corporation to sue if his or her own reputation had been damaged. It is already the case that public bodies and ‘emanations of the state’, such as quangos and nationalised industries, are not allowed to sue for libel in the UK. We propose limiting the opportunities for corporations and associations to sue to instances of malicious falsehood only.

We recommend: Exempt large and mediumsized corporate bodies and associations from libel law unless they can prove malicious falsehood