Libel law in the balance
Libel law in the balance
21 I 04 I 11
Justice Secretary Ken Clarke recently
published the latest attempt at a draft bill which would reform
current libel laws in England and Wales. The new bill grapples with
the ongoing debate about balancing freedom of speech with the right
to protection from damaging, libellous statements.
Parties on both sides of the debate have
campaigned over the last few years about what adequate reform
should look like. On the one hand, it has been argued that freedom
of speech has been inhibited by huge damages awards and time
consuming, expensive litigation. On the other hand, many believe
advances in technology, particularly the advance of the internet
and social media, have made it even easier for a person to reach
worldwide audiences instantly with false and defamatory statements
and that therefore the law should be updated to deal with these new
challenges.
The draft bill introduces what appears to be a
codification of existing, well rehearsed common law defences,
including defences of ‘truth’ and ‘honest opinion’. Both of these
currently exist in common law under the guise of ‘justification’
and ‘fair and honest comment’. The concepts are neither new or
radical. The media will be pleased to see that a public interest
defence is proposed (another codification) which it is hoped will
provide greater clarity about instances where invasion of privacy
can be justified, particularly in the case of celebrities. It is
too early to say whether defining these long established and
complex defences in statute will lead to more or less
litigation.
It is commonly said these days that England
and Wales are the libel capital of the world and that cases are
more likely to succeed here than in other jurisdictions. The press
frequently report cases from courts in England and Wales where the
connection to our legal jurisdiction is, at best, tenuous. The new
bill proposes that there should be a proper connection to the UK in
order for cases to be brought here and claimants will have to show
that this is the ‘most appropriate’ jurisdiction. The courts have
spent many decades developing the common law to deal with this
issue and it will be interesting to see what effect, if any, the
new bill may have on the number of cases pursued through the courts
in England and Wales if passed in its present form.
The bill does not go so far as to re-look at
the rules for internet service providers who, under current laws,
can find themselves in a precarious position as publishers of
potentially libellous material. This promises to be the subject of
future consultation. However, the bill does seek to introduce a
‘single publication’ rule which might go some way to pleasing
internet hosts.
Finally, Clarke also recommends abolishing
trial by juries in defamation cases. Juries have commonly been used
in these cases and they are of course a ‘fair’ method of trial - 12
ordinary people decide what something said meant and whether it
damaged a person’s reputation or not. However, they are costly for
both sides and the public so no doubt this will be gratefully
received by many.
For now the draft bill remains just that, and
it will have to go through the scrutiny and lengthy process of
debate before a final version is produced. Only at that point will
we see whether it is a dressed up attempt at reform or if indeed it
really gets to the heart of issues.