Libel law: free speech on trial

London, often dubbed ‘a town called Sue’, has long been the libel capital of the world, attracting chancers who know the odds are overwhelmingly in favour of those who sue. Libel law rests on the assumption that claimants (the new legal terminology for plaintiffs) have an ‘unblemished record’, unless this is contested by the defendant.

In addition, claimants do not have to prove actual harm. They just need to show that the words complained of are capable of lowering their standing in the estimation of ‘right-thinking members of the public’. Those who sue do not need to prove that their reputation has been damaged – nor do they need to prove that the words complained of were untrue. The assumption is that the defamatory statement is false, and the burden falls on the defendant to prove its truth. This reverse burden of proof is almost unique to English libel law.

The defendant does not only have to defend the literal meaning of a statement they have made, but also possible interpretations. To argue that a particular defamatory meaning was not intended will not hold up as a defence in court. Claimants can – and often do – succeed in attributing defamatory meanings to statements that the defendant never intended to be defamatory. No wonder claimants succeed in over 80 percent of cases that get to court. The absurdity of this situation was summed up by Lord Lester in The Times (London): claimants in libel cases, he explained, are able to ‘obtain damages for a statement made to others without showing that the statement was untrue, without showing that it did him any harm, and without showing that the defendant was wrong to make it’ (1).

With these kinds of odds, the libel courts provide some rich pickings. But only for the wealthy: the costs involved in libel trials frequently amount to six- or seven-figure sums, and there is no legal aid available for those who cannot afford to go to court. Following the Hamilton v Fayed trial in 1999 – where former Conservative MP Neil Hamilton sued Harrods owner Mohammed al Fayed, after Fayed said in a 1997 TV documentary that Hamilton had accepted cash for asking questions in the House of Commons – there were calls to hold those who financially support the claimant to be liable for the costs of the defendant, if the claimant should lose. But while this might curb some libel actions, it would only make the law even more exclusive to the rich.

The most worrying aspect of the UK libel law is the effect it has on free speech. If authors, editors or publishers have the smallest inkling that the truth of a proposition cannot be proven in court (even when made in good faith), the knowledge that they would have less than a one-in-five chance of success in a libel trial means the story is most likely to be dropped. One never knows what may emerge in the discovery process of a trial or how witnesses, on either side, will perform in the witness box in front of the judge and jury. As David Pannick QC explains, ‘the current state of the English law of defamation is impossible to reconcile with any developed concept of free speech. Defendants are liable even if they make statements that they reasonably believe to be true on matters of public interest; the plaintiff may receive substantial damages whether or not financial loss has been caused; and legal aid is unavailable….Our libel law assumes that life is lived in a gentleman’s club in which damage to reputation is one of the most serious injuries that a person can suffer’ (2).

Other countries at least attempt to strike a balance between the right of free speech and the right to defend one’s reputation. In the USA the landmark ruling of New York Times v Sullivan in 1964 created a public figure defence – making it very difficult for public individuals to sue for libel. In order to succeed, claimants would need to show that not only were the allegations untrue but they were made maliciously or with reckless disregard to the truth. The American Supreme Court observed that in free debate erroneous statements are inevitable and must be protected – otherwise free expression would not have the ‘breathing space’ it needs and media self-censorship would be inevitable. The fear of not being able to prove the truth of the published words in court, and the recognition of the expense and resources required to do so, would limit public debate. In 1997 the US Maryland State Appeals Court refused to recognise an English ruling, arguing that the principles of the English libel law failed to measure up to basic human rights standards and are ‘repugnant’ to the First Amendment ideal of free speech.

The basic principles of English libel law have until now survived most attempts at reform. In 1774 Lord Mansfield stated that ‘whatever a man publishes he publishes at his peril’ – a statement that could equally be applied to English libel law at the start of the twenty-first century. But a recent ruling in the House of Lords appeared to offer newspapers some relief over libel suits. Newspapers will be able to invoke a special defence of ‘qualified privilege’ in libel actions – when they report on information that is deemed to be in the public interest to know. Newspapers making defamatory statements will be protected if information is so important that the interest in publishing it outweighs the right to safeguard reputation: ‘The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.’

So are we finally moving in the direction of incorporating a public interest defence? The Guardian‘s media editor Roy Greenslade has had his doubts, arguing that ‘it seems impossible to effect any concrete change in Britain, no matter how necessary, despite majority public backing, whatever the merits of the arguments from experts. Better to fudge, to introduce change grudgingly through the back door, than to boldly sweep aside the old in favour of the new’. And when looking at the criteria that publications will have to meet in order to qualify for the protection, Greenslade’s misgivings seem justified. The Lords suggest a list of at least 10 factors to take into account, including the seriousness of the allegation, the nature of the information, and the extent to which the subject matter is a matter of public concern, the source of the information, the steps taken to verify the information, the urgency of the matter, and the tone of the article.

The price of broadening ‘qualified privilege’ is therefore to submit editorial judgements to judicial scrutiny – a price deemed by some as too high. Lord Nicholls counters this concern by arguing that ‘the common law does not seek to set a higher standard than that of responsible journalism, a standard the media themselves espouse’. But editors will not know at the time of publication whether a particular story is likely to be protected or not. It is still left to judges to decide the balance of the interests of freedom of speech and the protection of reputation – ultimately leaving little protection for the open exchange of ideas.

It is possible that English libel courts will move away from the uncompromising support for the right to reputation over the right to speak freely, but the law lords’ ruling does not take us very far down that road. It is nowhere near the public figure defence in the USA, which allows journalists to write what they believe to be right – even if it is wrong – as long as there was no malice ‘or reckless disregard to the truth’.

As somebody who has been at the receiving end of a libel writ, I am acutely aware of the costly and time-consuming nature of libel trials. But the law does not only affect those journalists, broadcasters, editors and publishers who are faced with libel writs. It has a chilling effect on the whole of the media.

Libel is an outdated law that does not belong in the twenty-first century. The sooner it is scrapped the better for everybody – apart from gold-digging claimants, of course.

Reproduced from LM 127, February 2000

(1) The Times, 7 December 1999

(2) The Times, 20 April 1999