Two cheers for libel law reform
The draft Defamation Bill still leaves too much power in the hands of judges to decide what can be published.
‘The right to speak freely and debate issues without fear of censure is a vital cornerstone of a democratic society. In recent years, though, the increased threat of costly libel actions has begun to have a chilling effect on scientific and academic debate and investigative journalism.’ UK justice secretary Ken Clarke was speaking on the day the coalition government published its draft Defamation Bill. In effect, this is the government’s initial solution to the ‘chilling effect’ of libel law on our right to speak freely.
So is the Bill a potential blow struck for free speech? Well, yes. And no. The Bill, if passed by parliament, could well relax the oppressive grip of the libel courts on public debate and discussion. People might indeed be able to speak their minds without (as much) fear of legal retribution. And yet at the same time, by merely trying to perfect libel law, not abolish it, the bill suggests that free speech can never be absolutely free. We, the public, will still need especial individuals with especial acumen to decide whether something is true or whether it is in our interest to hear about it. Or, as these gifted individuals are otherwise known, judges. So whether reformed or unreformed, a law court remains elevated above the proper home of free speech, the court of public opinion.
However, in its own terms, this reform of libel law is welcome. The most newsworthy proposal has been the planned assault on so-called libel tourism. Under current laws, an overseas individual can sue an individual or a publication even if the offending comments or article have barely circulated in the UK. For example, film director and America’s Most Wanted, Roman Polanski, successfully sued Vanity Fair in 2005 for a story suggesting that he had tried to seduce a buxom Swede on the way to his wife Sharon Tate’s funeral. As Vanity Fair editor, Graydon Carter, put it at the time, it was ‘amazing’ that ‘a man who lives in France can sue a magazine published in America in a British court’.
The draft Defamation Bill will put an end to such an absurdity. Now it will have to be clear that ‘England and Wales is… the most appropriate jurisdiction in which to bring an action in respect of the [offending] statement’. That is, if a defamatory statement has been published more somewhere other than the UK, then any potential claimant will have to lump it.
The majority of the other reform proposals attempt to shore up a person’s ability to state something they believe to be true which might be worth the public knowing. So there could soon be a statutory public interest defence (as opposed to the common law precedent set by Reynolds v The Times), which demands that a defendant ‘show that the statement complained of is, or forms part of, a statement on a matter of public interest, and that he or she acted responsibly in publishing the statement’. Set alongside that, there could also be a statutory defence of privilege which recognises ‘that there are certain situations (privileged occasions) in which it is for the public benefit that a person should be able to speak or write freely and that this should override or qualify the protection normally given by the law to reputation’. Providing, of course, that the defamatory article or comment is also in the public interest.
So in its own terms, as a reform of libel law, progress has been made. The balance has shifted a little from the claimant to the defendant; the protection of reputations has ceded ground to the freedom to criticise reputations. These are welcome developments… in legal terms.
But in terms of fighting for free speech, which after all is what the challenge to existing libel law ought to be about, there is something naive and self-limiting about merely reforming libel law. It assumes that there is a need for libel law. It assumes that we as a society need recourse to a legal authority higher than ourselves to adjudicate on differences of opinion. It assumes that we need a judge to decide whether or not a statement was in the public interest. Speech is not free here; it is regulated, judged and adjudicated upon, by a tiny, bewigged minority.
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And that seems to be the problem with this draft Defamation Bill. While it looks like a small triumph for freedom of speech (which it is in its way), it simultaneously betrays a lack of trust in our capacity to cope with freedom of speech. The truth of an accusation, the veracity of argument, is not something for us to decide in the public sphere; it is to be settled in the courts. In this regard, it is telling that one of the proposed reforms is to remove ‘the presumption in favour of jury trial’ from libel hearings. The Bill’s authors admit that matters of a persons’ reputation ‘should be considered by their peers’. But they add that ‘the existence of the right for either party to opt for jury trial and the role which juries (if used) have to play, for example, in determining the meaning of allegedly defamatory material, means that issues which could otherwise have been decided by a judge at an early stage cannot be resolved until trial’. In other words, juries – the proxy for the public in a court of law – get in the way of the quick, correct judgement of judges.
Alongside the underlying belief that libel courts – and judges – are best placed to establish the truth of a statement, there is a suspicion of our own ability to do just those things. And it is this ability which we need to stick up for. To call for the abolition of libel law is not an apology for unscrupulous hacks. It is to assert that we, the public, are the best people to decide whether a statement is in our interests, whether an opinion or argument is true, or whether a comment is fair.
Tim Black is senior writer at spiked.