UK: Freedom Of Speech Triumphant

Last Updated: 4 April 2011
Article by Duncan Lamont

The Lord Chancellor and Secretary of State for Justice, better known to you and me as Ken Clarke, published in March the long awaited draft Defamation Bill, for consultation until June 2011. Duncan Lamont looks at the Bill and what lies behind its new provisions.

To many lawyers, and other users of the Courts, the law of libel gets much more attention in Parliament and in the media than it deserves. Many areas of the law could do with some updating but do not get a look in because of the hyped up outrage (from the USA not just the Daily Mail) about libel tourism even though the number of cases is actually tiny. Parliament's time is spent on the squeaky wheel of defamation rather than more important areas such as copyright or legal costs.

The draft Bill, if it becomes law, will do little to protect tabloids more but will actually be very helpful in assisting investigative journalists in their work in publishing stories that are genuinely in the public interest, particularly if there is an element of political, academic or scientific debate involved. So the new Bill is welcome.

The Bill restricts itself to proposed amendments to the law of defamation, but there is an element here of the horse having bolted leaving the cart behind. There are hardly any defamation cases nowadays, with almost none going before a jury (and it is proposed that jury trial will be effectively abolished) as claimant media lawyers focus on the new law of privacy which, like the old law of libel, is flexible and common law based and untouched by Parliament! We know from the recent HIJ case and XJA case, and with others in the pipeline, that the High Court and Court of Appeal are trying to bring order in to the law of privacy but there remains much to litigate over. And numerous law firms (including this one) have become involved in the claims and potential claims arising out of the alleged phone hacking by journalists in the last decade. So the real media law action is elsewhere.

But by and large the proposed reforms are to be welcomed by the media although new legislation tends to mean new test cases rather than less damage to stretched legal budgets...

The main proposals:-

  • Substantial harm

In a series of cases involving allegations of terrorism (in its loosest sense) and bad tennis playing the courts had already put into place a wall against frivolous claims – a "threshold of seriousness" but this is to be given statutory form in a new requirement that a statement must have caused substantial harm in order for it to be actionable in defamation.

  • Responsible publication in the public interest

Clause 2 of the draft Bill introduces a new defence of responsible publication on a matter of public interest. This is a development of the principles set out in Reynolds v Times newspapers (1999) and Jameel v Wall Street Journal (2006) because there was a concern amongst some that the courts were being too tough on newspapers (OFCOM imposes tougher standards on broadcasters) and that the Reynolds defence was more illusory than real. A good reason for Parliament to intervene was that media lawyers may have known the nature and scope of the possible defence available to publishers but one needed to read and understand a host of cases whereas members of the public, who increasingly are becoming self publishers themselves, would not have the faintest idea of how they could avail themselves of this complicated area of cases and comments. The Bill does not however define "the public interest" and there is still scope for judicial evolution because the wording is that the court "may have regard" to the list set out in 2(2) "(amongst other matters)". So some of the omitted requirements set out by Lord Nicholls may return via the backdoor.

  • Justification defence to be called "truth"

This is to simplify and clarify the law. A defendant need not prove that every word was true but only that the publication was "substantially" true.

  • Fair comment to become "honest opinion" on a matter of public interest

The common law on fair comment, although based once upon a time on common sense and a desire to strengthen freedom of expression, has become mired in such complexities that even the Court of Appeal struggles to understand what the law actually is or was. This new codification of the defence should assist scientific and academic debate and does reflect the media's concerns arising out of the case of British Chiropractic Association v Simon Singh. But most probably there is still going to be plenty of litigation in the years to come over quite what a "statement of opinion" might be.

  • Absolute and qualified privilege tidied up and broadened

This statutory defence has been spring cleaned and made more international.

  • A single publication rule

The development of online media archives available to the public has caused much litigation and debate, much of it involving the Times newspaper. But to stop litigation concerning old newspaper stories available online (the modern equivalent of the European aristocrat sending his servant over to England to buy a copy of a book defamatory of him many years after its publication) the law will be changed so that a claimant will be prevented from bringing an action in relation to publication of the same material by the same publisher after the one year limitation period from the date of the first publication of that material to the public or a section of the public. But be warned – the claimant would be allowed to bring a new action against a new publisher.

  • Libel tourism

The judges have demonstrated again and again that this was more of a rallying call for media libertarians than a real problem within the courts but it does look rather surreal, it could be argued, when a Ukrainian businessman sues a Ukrainian newspaper over a Ukrainian story about alleged corruption in the Ukraine that just happens to have been available in the UK (and elsewhere) online. This is an area where the changes are unlikely to stop litigation as reputations are increasingly international and substantial harm can be caused here to global figures by some foreign newspapers less experienced in investigative journalism then ours. Within the European Union there are so many different forms of media laws it hardly helps as harmonisation is decades away and as we know from the old case of Shevill v Presse Alliance, Europeans are able to sue here if there has been "a harmful event" so it may become increasingly odd that defamed Ukrainians can't. The Americans do not like our libel laws when they are publishers but bizarrely seem to love them when they wish to be claimants as can be seen from all the Hollywood stars smiling on the steps of the Royal Courts of Justice.

  • Removal of the presumption in favour of trial with a jury

Very sensible and modern no doubt but many will miss the drama of a jury returning its verdict – the sort of thing that made wonderful television!

The draft Bill is meant to bring the English and Welsh law of libel up to date. Put broadly it does. But technology does not stop and the emerging law of privacy, hugely popular in Europe, and which finds favour in America too, is changing the legal landscape here more dramatically than the laws of libel ever did. The old adage of "publish and be damned" is becoming ever more acronystic. The European Court's decision on whether Max Mosley should have been given the right to injunct the publication of a story that was so intrusive into his private life is likely to have a more dramatic effect on tabloid journalists (but maybe less so on television journalists) than the changes in the draft Bill ever will.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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