The draft Defamation Bill has been welcomed by media reformers, but some fear
it is a missed opportunity,
reports Katy Dowell
After intense lobbying by defendant media lawyers and their newspaper clients, the Ministry of Justice (MoJ) has finally published the.draft Defamation Bill. Broadly, it has been welcomed by the media reform lobby.
Practitioners, however, complain that the legislation has only codified the status quo, and that the MoJ has missed an opportunity to fix serious problems with costs and process.
The thrust of the argument for libel reform has focused on the need to protect freedom of speech. Reformists argue that London is the prime destination for libel ‘tourists’ intent on destroying fundamental freedoms by silencing writers through expensive litigation.
At the heart of this, reformists argue, is a judiciary that has handed down successive judgments that have served to restrict free speech. In 2008 Daily Mail editor Paul Dacre summed up this school of thought when he slammed the “arrogant and amoral” judgments of Mr Justice Eady, who he said was “inexorably and insidiously” imposing a privacy law on the press. Eady J took a year to respond, but when he did, it was with vigour.
“It’s become fashionable to label judges not as independent, but rather as unaccountable and as hostile to freedom of speech,” he stated.The spat, seemingly passionate and personal, only served to stir the attention of the MoJ, and then justice secretary Jack Straw announced a long-overdue review of libel law.
His successor Ken Clarke picked up the baton and, under intense pressure from newspapers, which claimed to be under threat from countless injunctions, pushed forward the legal reform programme. Over the past 10 months the MoJ has held meetings with interest groups including judges, lawyers and editors.
The reformists have kept the issue in the public eye by homing in on the phone-hacking scandal, an issue that opposing lawyers say should be entirely separate from the libel reforms.
The draft Defamation Bill includes eight key clauses and a consultation. It is a slimmed-down version of the original Private Member’s Bill tabled by Lord Lester in May last year, which contained five principal parts: defences, statutory privilege, publication, cause of action and trial by jury.
According to Collyer Bristow partner Dominic Crossley, who represented Formula 1 chief Max Mosley in his successful privacy claim against News International, the bill is “a bit of an anticlimax”.
“I’ve responded with a bit of a shrug of the shoulders,” he comments. “A lot needs to be done in general and it doesn’t feel at the moment that the bill, as it’s drafted, deals with those issues.”
“It’s really quite disappointing,” echoes another senior media lawyer, who contributed to the drafting of the bill. “[The MoJ] had months and months to do this and countless meetings, but there are gaping holes in it.”
Addleshaw Goddard partner David Engel adds his voice to the dissenters. “The Government was disingenuous when it announced it,” Engel says. “There’s not a lot of new stuff. It’s just about codifying a load of stuff that’s already common law.
“Having said that, it’s generally welcomed by newspaper lawyers because it makes life easier for defendants. It strikes a good balance between the competing freedoms of the press and the right to reputation.”
Unsurprisingly, not everyone agrees.
“The bill’s a real disappointment for those of us who’ve called for a radical rethink of the existing law that would properly value the rights to reputation and freedom of expression while at the same time ensuring access to justice for both defendants and claimants,” says Professor Alastair Mullis of the University of East Anglia.
It is the nature of media litigation lawyers to find the argument in everything, but most agree that the bill will spawn litigation as the legislation is tested through the courts.
If the bill is passed claimants will be forced to demonstrate that an offending publication has caused ‘substantial harm’. The aim is for the judiciary to filter out spurious claims before they get to the courts.
Claimant lawyers, however, say the clause is open to varying interpretations, depending on what side of the fence a client is on.
“There’s no guidance as to what this means,” says Taylor Wessing head of trademarks, copyright and media Niri Shan. “For example, how will a corporate claimant show they’ve lost a contract because of an article that’s been published? How does a celebrity show loss of reputation?”
Payne Hicks Beach partner Sarah Webb, whose clients include private investigator Glenn Mulcaire, who was jailed for six months for phone-hacking for the News of the World, agrees.
“Substantial harm means a huge amount of frontloading on costs because there’ll be interlocutory hearings about what has to be disclosed to show the harm,” she says.
The MoJ has promised to crack down on rising legal fees as part of its response to Lord Justice Jackson’s civil litigation reforms. Libel reformists argue that it is because of the uncertainty involved with libel litigation, and the fact that the loser could end up paying the opponent’s astronomical legal fees, that writers are pressurised into settling matters.
Under the Jackson reforms lawyers will only get 10 per cent uplift on conditional fee arrangements (CFAs). It is understood that the final plans for reform could be published as early as this week, having a direct impact on how practitioners respond to the Defamation Bill consultation process.
“The big question is on costs,” says Engel. “The recoverability of success fees, after-the-event premiums, the costs-shifting rules – all these things mean that people who don’t have deep pockets won’t be able to sue.”
“So long as they don’t do away with CFAs completely the cut to the uplift will be manageable,” Webb says. “But it will also restrict the choice of lawyers because people will walk away.”
Reformists argue that, under the current regime, claimants can easily bring cases at no financial risk to themselves. This has attracted a wave of wealthy international libel tourists to the UK. The MoJ concedes that it has little evidence to suggest that London is the libel hotbed that reformists paint it. Nevertheless, the Defamation Bill states that courts will no longer have the jurisdiction to hear international matters unless England and Wales is the more appropriate jurisdiction.
Shan says this is a logical response to a perceived problem. “Although a lot’s unclear about libel tourism, it does send a message to foreign litigants – come here at your peril,” he warns.
The juiciest sections of the bill are contained within its consultation on clauses that may be added at a later date.
These include a closer look at court procedure, whether the summary disposal procedure should be maintained, and whether any specific restrictions should be placed on the ability of corporations to bring defamation claims – although it does not explain how this might work.
“Non-governmental organisations have argued that corporates should not be able to use their muscle to silence their opponents, but having that as a statute isn’t going to go down well with companies wronged by editors,” says one libel specialist. “It places too much power in Fleet Street hands.”
The reform of libel law is long overdue, but in failing to be radical in its approach the Government has gained several legal critics. Without a reform of the court process and a fundamental rethink on the structure of costs, the Defamation Bill will lose its ‘seminal moment’ status and be remembered as an opportunity missed.
1. Substantial harm defence: Libel is currently actionable without proof of actual damage. Recent case law has introduced a “threshold of seriousness” with regard to what is defamatory. The bill states that a claimant must demonstrate that a statement has caused, or is likely to cause, substantial harm in order for it to be defamatory.?
2. Responsible publication ona matter of public interest defence: This codifies some
of the existing law on the Reynolds qualified privilege defence. The aim is that the defence will be available regardless of whether the ?statement complained of is a statement of fact, an inference or an opinion. Historically this defence has arguably related to statements of fact only.?
3. Statutory defence of truth – This clause replaces the ?current common law defence of justification, clarifying the law in relation to reportage ?doctrine. Where this applies, the defendant does not need to ?verify the information reported before publication if they believe it to be true at the point of publication.?
4. Honest opinion defence: This can be relied on if the ?statement is one of opinion and on a matter of public ?interest that an honest person could have held on the basis
of a) a fact that existed at the time the statement complained of was published, or b) a privileged statement that was published before the statement.?
5. Privilege: This extends ?provisions already contained in the Defamation Act 1996. For example, the law currently provides for absolute privilege to apply to fair and accurate reports of proceedings in ?public before any court in the UK. This defence would be extended to cover proceedings in any court in a country or ?territory outside the UK.?
6. Single publication rule: The first occasion on which a ?publication is made available to the public (or to any section of the public) is to be regarded for all purposes as the date of ?publication of each ?subsequent publication.?
7. Libel tourism – A court does not have jurisdiction to hear and ?determine an action to which this section applies unless the court is satisfied that England and Wales is the most appropriate jurisdiction in which to bring an action.?
8. Presumption of trial without jury – A reversal of the status quo, with proposals to remove the presumption in favour of a jury trial so that a judge would have the discretion to order a jury trial where it is in the interests of justice.