With Leveson and libel, reforms are not enough

Libel reform campaigners in the UK are worrying that the House of Lords’ attempt to sneak through a ‘Leveson law’ on press regulation could scupper their treasured Defamation Bill. If so, it could be an opportunity to restart the public debate on both issues with a more forthright defence of freedom of expression and a free press. Time to put every page of the Leveson report and every clause of Britain’s libel laws in the dustbin of history where they belong.

The Lords are certainly playing low politics with high principles. Infuriated by Tory prime minister David Cameron having the nerve to reject Lord Justice Leveson’s proposal for a law to back the new press regulator, their lordships have been plotting revenge. A rum collection of Labour lords supported by dissident Tory, Liberal Democrat and non-party ‘cross bench’ peers looked for a way to smuggle a Leveson law on to the statute books. The nearest passing vehicle was the Defamation Bill, containing reforms to the libel laws, which is now going through the final stages of its parliamentary passage.

So the ‘rebel’ lords, led by Labour’s Lord Puttnam, attached an amendment to the Defamation Bill that would create the press arbitration body backed by statute that Leveson wanted. This has raised the prospect of Cameron withdrawing support for the Defamation Bill and watching it fail altogether, rather than allow a Leveson law in through the back door. Cue outcry of frustration from lobbyists for libel reform who have spent years getting the bill this far. Having invested their hopes in a law put together by political compromise and legal argument between lords, lawyers and political leaders in the corridors of power, they now find their hopes may be scuppered by the same sort of oligarchic power games.

The amendment passed by the House of Lords was infused with the elitist spirit of the Leveson Inquiry. From the first, that inquisition into the entire ‘culture and ethics’ of the UK media was an exercise in ethical cleansing, designed to purge the press of that which offends the taste of those who consider ‘popular’ a dirty word. Leveson’s proposals for a new ‘independent’ regulator backed by law to police the press pose a real threat to freedom of expression. Yet the ‘Leveson principles’ have been accepted by political leaders on all sides, with the exception of the controversial proposal for statutory backing.

The Lords’ amendment to the Defamation Bill would create a Leveson law by creating, through statute, his arbitration body for press complaints. It encapsulates the Lord Justice’s scheme for indirect coercion of publishers: an ‘incentive’ of low-cost arbitration for those who sign up to the system, backed by the threat of ‘exemplary damages’ and costs being awarded in court against those who do not submit to the new arbitrator – potentially even if they win the case!

In fact, the Lords amendment went even further than Leveson, in decreeing that publications should be encouraged to seek the ‘advice’ of the new authorities before publishing controversial stories, as to whether the material was in the ‘public interest’. Those who did not seek such approval, or who rejected the advice/instructions offered, could be in line for being hit with exemplary damages again. This amounted in effect to a system of prior restraint on publication, the sort of censorship beloved of tyrants everywhere. As Lord Lester, a leading advocate of libel reform, pointed out: ‘The only European states with such a rule are former states of the Soviet Union.’ Their lordships have now sought to row back from this extraordinary proposal – less because it was attack on free speech than because they were advised that their counterparts in the European Court could embarrassingly rule it illegal.

Even without that legal step-too-far, however, rumours abound that Cameron’s Tories are prepared to dump the entire Defamation Bill rather than see the Lords’ amendment create a Leveson law, while he gets closer to doing a deal with the other party leaders on his equally bad plan for a regulator backed by Royal Charter (see An unfree press – by appointment to the Crown?). Thus the major political parties, all of which declared their commitment to libel reform at the 2010 General Election, are all now prepared to sacrifice those high-minded promises on the altar of petty politicking. Such is the low value those principle-free politicians who pay lip service to freedom of expression really place upon such trifles today.

This prospect has, understandably, outraged libel reform campaigners who have invested their all in the Defamation Bill. But should the Lords’ behaviour really have come as a shock? After all, the campaign for libel law reform has often carried a whiff of similarly Leveson-style attitudes. In particular, they might appear to share the prejudice that thinks ‘reasonable’, respectable or scholarly opinion deserves more protection in law than the scurrilous, unseemly or sacrilegious. And the assumption that decisions about who has how much freedom of speech and what is in ‘the public interest’ should be in the gift of judges.

Britain’s libel laws are the most execrable in the Western world, and arguably the worst legislation on the UK statute book. As I told the media on the steps of the Royal Courts of Justice in 2000, after losing our libel trial – and losing with it the magazine, LM, which was sued and bankrupted by ITN – those laws are ‘a disgrace to democracy and a menace to free speech’. Everything about the defamation laws, from the assumption that the accused is guilty until they can prove their innocence, to the insistence that telling the truth as you understand it is no defence, is weighted against freedom of expression. Such is the ‘chilling’ effect of the libel laws that often the mere fear of legal action is enough to prevent the publication of a controversial story or entire book.

Libel law has served as a means to protect the rich and powerful, and London has become the defamation capital of the world as plutocrats from every corner of the planet ask the courts here to silence and punish their critics at home. Just this month, a London libel judge found in favour of a billionaire sheikh against a dissident Ethiopian journalist who is exiled in the US, where he runs a shoestring website about Ethiopian politics for an Ethiopian audience. Whatever the tribulations of the British tourist industry in recent years, ‘libel tourism’ has boomed.

When a law is that bad, there is plenty of scope for improvement. And positive reforms should be welcomed (though not necessarily celebrated), however minor. Some of the proposals put forward by Lord Lester and other prominent libel-reform campaigners, and included in the Defamation Bill, should certainly improve matters. For instance, a claimant – and especially a corporation – would have to show evidence that the ‘words complained of’ had done them substantial harm, rather than simply asserting it as they can at present, which could scupper many a bullying case at the start. And libel tourism would be limited by the bill’s provision that a case against foreign defendants should be heard over here only if London is ‘clearly the most appropriate place in which to bring an action in respect of the statement’. The current ‘multiple publication’ rule, under which every download of an article from the web is treated as a new publication, would end. And the bill would establish a ‘public interest defence’ for publishing defamatory material.

The problem is, however, that the libel laws – like the Leveson report – are not merely dangerous in the details. Both are imbued with hostility to proper freedom of expression throughout. That central institutionalised prejudice against free speech will not be altered by any of the changes to libel law now proposed, just as the fundamental threat that the ‘Leveson principles’ pose to a free press will not be lifted by the absence of statutory underpinning.

Indeed, important aspects of the libel reformers’ campaign and proposals could do more to reinforce than challenge some underlying problems with the current debate. Throughout, their campaign has emphasised the need to defend ‘responsible’ scientists, doctors, academics, researchers and human-rights lobbyists from being threatened. Their headline case has been that of science writer Simon Singh, sued by the British Chiropractic Association for rubbishing its alternative therapies. This approach effectively mirrors that of the Leveson Inquiry, where the judge and his lawyers were constantly at pains to emphasise the difference between ‘ethical’ highbrow journalism and low tabloid exposes.

Yet if you believe in freedom of expression, there should be no difference at all in the law’s attempt to police a ‘responsible’ expert and an ‘irresponsible’ idiot. Nobody should have to pass a test set by Lord Justice Leveson, David Cameron, Lord Lester or anybody else to qualify for the right to freedom of the press. The snobbish prejudice that liberty only really matters for those who serve ‘the public interest’ – as defined by the courts of course – should be challenged no matter which side espouses it. As I have observed before in the Leveson debates, few of the trouble-making heroes of the historic struggle for a free press in Britain would have been awarded any such stamp of official approval.

Worse is the Defamation Bill’s provision, demanded by leading libel reformers, to remove the presumption of a jury trial in a libel case. This is justified on the ground of reducing costs, which is a major concern in defending libel cases. But there are even more important things than money. Like the belief in freedom of expression itself, the right to trial by a jury of your peers rests upon the idea that ‘ordinary people’ are capable of weighing the evidence, choosing who to believe, and making choices for themselves. By contrast, the notion that ‘the judge knows best’ reflects the essentially authoritarian, misanthropic mood of our times. That was the elitist spirit of the Leveson Inquiry, and it was the same assumption that led the Lords to imagine that they had the authority to pass a Leveson law whatever anybody else thinks. It also appears to have infected the approach of leading libel-law reformers.

It seems unlikely that any legalistic reform, however well-intentioned, could go far enough to right the institutionalised wrongs of the UK libel laws. Along with the Leveson report, they really need to be ripped up in their entirety. I have offended conformists of late by asking why we need any special regulation of the press at all. After all, the US seems to manage without it. An even more controversial question might be: would we better off without the libel laws?

Reputation is, of course, important, and if somebody could devise some way of protecting it without impinging on free speech I would be content to sign up. But given the way that the notion of reputation is now elevated above the right to freedom of expression in our culture and law, it seems we would certainly be better off without the defamation laws than with the current illiberal mess, reformed or no.

Just as we have invoked the historic struggle for a free press in the argument for dumping Leveson, perhaps we should look to a modern version of the spirit of Cato, the eighteenth-century London newspaper essayist who helped to inspire the American Revolution and the First Amendment. Cato understood that defamatory comments could do real damage. But, he concluded, ‘I would rather many libels escape than there be any restrictions on a free press’. Now that sounds like a principle worth fighting for.

Mick Hume is spiked’s editor-at-large. His new book There is No Such Thing as a Free Press… And We Need One More Than Ever is published by Societas and is now available in print and Kindle editions. (Order this book from Amazon(UK).) Visit his website here.