This defamation bill is no friend of freedom
Bizarrely, free-speech activists are cheering a new bill that will entrench the state’s right to decide what we can say.
In the course of the Queen’s Speech to the UK parliament on Wednesday, in which the monarch traditionally reads a script prepared by the government detailing the agenda for the next parliamentary term, it was announced that a new Defamation Bill would be considered for the statute books. The bill was purportedly introduced to ‘afford greater protection for free speech’ by limiting the ambit of England’s current libel law.
Under defamation law as it stands, there is no need for claimants to demonstrate that libellous words have caused actual harm. As long as they can demonstrate that the words might have caused harm, they can be awarded damages. The new law would impose an obligation on claimants to show that they have suffered ‘serious harm’ as a result of a libel before they are able to claim a penny.
Free speech campaigners are overjoyed. Index on Censorship, which led a campaign for liberalising the libel law, proclaimed ‘we did it!’, calling the bill an ‘amazing achievement’, a ‘libel law fit for the twenty-first century’, which would ‘open the way to… protecting free expression for journalists, writers, bloggers and scientists around the world’ . Others called the bill a ‘major milestone’ and a reform guided by ‘public interest not powerful interest’.
The new bill will certainly make it more difficult to sue under defamation. But those who think that it is any kind of milestone for free speech are deluded. In fact, if anything the bill is a significant step backward for free speech, because it legitimises the idea that the state should be allowed to set the boundaries of what we can and can’t say and publish.
For example, the new law would remove the presumption in favour of trying libel cases before a jury. Under the current law, either party can apply to have a case heard by a jury. Their application must be granted unless it is ‘inconvenient’ to do so – that is, unless the case is too complex. In practice, this means that the majority of cases under the current law are heard by a jury as opposed to just a judge. In 2008 and 2009, only eight of the 21 defamation claims that reached the High Court were settled by a judge alone.
The assumption in favour of a jury reflects the fact that defamation cases often involve issues which are deeply dependent on their social context. The current law recognises that questions about what given words mean, whether someone can legitimately claim that their reputation has been damaged, and, perhaps most obviously, what is and is not in the ‘public interest’, are issues which are best decided in reference to social norms and attitudes. A jury is necessarily better able to reflect these norms and attitudes because it is made up of the people who create them: the public.
The presumption in favour of a jury also recognises that the public has a significant stake in the outcome of libel cases. The judgements handed down on libel defendants can close newspapers, magazines and websites, as well as have a significant impact on the reputation of people in the public eye, such as our elected representatives. Under the current law, there is a recognition that the public’s stake in the outcome of libel cases, and the necessarily public nature of the issues they decide, differentiate libel cases from other civil cases, like personal injury or marital disputes, in which the outcome and the nature of the harm is strictly private. The fact that most libel cases, which are deeply social in their context and their consequence, might soon be decided by a judge alone signifies a major step backward for the public involvement in setting the boundaries for free speech.
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The removal of the jury is a fitting illustration of a more philosophical point about why this law is bad for free speech. By introducing a purportedly high threshold for determining libel cases, we legitimise the idea that the courts are best placed to decide the limits to expression. By hailing the new law as a ‘milestone’ and a ‘major achievement’, free-speech campaigners are tacitly endorsing the idea that a high threshold means that the principle of libel law, or the idea that the state should get to decide what is okay and not okay to publish, is a legitimate one. They should remember that laws are the means through which the state sets the boundaries on the activities of the public. Arguing that any law can ‘protect free speech’ entrenches the idea that speech has to be limited. It gives legal expression to a common mantra in public debate today: ‘I support free speech, but…’
A defence of real free speech can never be suffixed with a ‘but’. That’s why, rather than celebrating the arrival of new defamation legislation, we should use this debate as an opportunity to argue for the complete repeal of all libel laws. Accepting compromises from the state in the form of new laws can only hinder the argument for the only kind of free speech that matters – absolute free speech.
Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.