The libel reform debate is filled with rhetoric about free speech, but it is badly misinformed.
By Alastair Mullis and Andrew Scott
Introducing the draft defamation bill in March of this year, the deputy prime minister issued a rallying call to freedom of speech: "In a modern, liberal and open society dissent should be celebrated, and debate should be raucous. the press should be free. and in our society, they will be."
Stirring words indeed, but they are symptomatic of a debate that has been misinformed and misdirected. Despite the incessant critique in the press, libel law - in substance - is not weighted against free speech. The government's reform bill, with its emphasis on tweaking the law so as to promote the importance of expression interests, is in danger of squandering an historic opportunity to address the real problems that blight our libel regime, and with it our public culture: cost, cost and cost.
This is not to contend that the fabled 'chilling effect' of libel is a myth. Investigative journalism is constrained, scientific discussion bowdlerised, and cultural criticism on many different themes quietened. Fear of the law impacts directly, every day, on decisions whether to publish, but also more systematically on decisions whether to engage with particular issues, particular organisations, particular people. This chill arises, however, not because publishers - especially individuals, NGOs, or alternative or local media - expect the courts to disregard their right to speak freely. Not at all, in most cases, because they expect to lose. Rather, it arises because win or lose as a libel defendant they will be out of pocket to the tune of unbearable thousands. Whither access to justice? Do we not care for the rule of law?
The untold aspect of this blight is that it also afflicts libel claimants. Those who find their reputations sullied are often left stranded without recourse to law, unless they have wealth, a devil-may-care streak as wide as a canyon, or legal personality but no beating heart. Conditional fee agreements have ameliorated this problem for those with cases strong enough to persuade a lawyer that the risk is worth bearing for the chance of enhanced fees. The days of the workable CFA, though, are numbered and we will soon be back in the land of rich man's law. The prospects for access to justice and protection of reputation look bleak for most claimants. The behaviour of wealthy claimants and of media organisation defendants can be expected to deteriorate further when faced with 'small' adversaries.
The paucity of imagination in the government's draft bill is its primary weakness. It is supposed that the libel regime cannot be redrawn in any very significant way, and so in many areas the proposed reforms merely restate the existing common law or make minor incremental changes (public interest defence, the defence of truth, the substantial harm requirement, qualified privilege). In places, perhaps inadvertently, the bill proposes significant change while professing only to recast the law (honest comment defence). Where step change is offered (libel tourism, the single publication rule), it will affect only a tiny minority of actions.
One important but undercooked change is the decision to end the presumption of jury trial. Abolition would have been preferable. Importantly, these changes will not deflect many abusive litigants. Threats to sue will remain sufficiently credible to get into court. The substantial harm gateway will affect only palpably weak cases. Privilege and honest comment can be undone by allegations of malice on the part of the publisher. Such allegations will have to be entertained, and will be levelled. Proving that one acted responsibly gives a defence, but it is a costly course to undertake. The financial risks of contesting actions will, largely, remain. Plus ça change.
Kicking over stones with the mindset that complexity and cost is the prime concern, we found some worms. Most were just worms; some proved butterflies, but one was an unlikely dragon. Since 2004, the courts have recognised a [European] Convention right to reputation as part of the article eight right to privacy. While previously it was thought that freedom of expression would always be a 'trump card', this is no longer the case. Today, at least in respect of most defamation claims, the court is required instead to weigh the competing interests of the claimants under article eight and the defendants under article ten, as well as considering societal interests in reputation under article ten (two). This development has been strongly resisted by lawyers and campaigners concerned with the free speech of the media and others. For us, it is the key that allows access to a brave new libel world.
Understanding how the right to privacy can possibly encompass reputation - a quintessentially public thing - affords us a new perspective on the purposes of libel law. Our thinking has been informed by philosophical understandings of democracy and the public sphere, and by the social psychology of reputation. Ultimately, we recommend a coherent and significant set of substantive and procedural reforms that if enacted would enhance access to justice, simplify processes and reduce costs for the vast majority of libel actions. The design of the libel regime we propose properly triangulates the rights and interests of claimants, defendants and the wider public.
The details of our scheme are complex, although its operation would be straightforward. In essence, it comprises a 'two-track' libel regime. The core of the proposal is a much-simplified process. This is facilitated, first, by relying on the claimant's interpretation of the meaning of the impugned statement suitably hedged so as to avoid game-playing, and secondly by jettisoning the legal fiction that there is always a 'single meaning' to any statement. We then provide a basis for allowing much reduced damages. We emphasise discursive remedies - corrections, retractions, rights of reply - that are precisely those, afforded quickly, that claimants usually seek.
We focus defences on matters of truth and falsity. In the unusual case where parties wish to rely on a public interest defence or to contend for higher damages, they would have to refer out to a second track whereon they would carry their own costs. Our approach to substantive questions very significantly reduces the complexity and cost associated with particular cases. Hence, it reduces the chilling effect on publication, and markedly enhances access to justice for defendants and claimants. A further key benefit of the scheme we propose is that it provides significant incentives for complaints to be settled quickly between the parties without recourse to the formal legal regime.
We appreciate that releasing media defendants in most cases from the risk of very significant legal costs and damages may encourage 'game-playing' by some organisations. In our view, the blunt constraint currently afforded by high costs are adequately substituted by obliged dedication of space to accommodate discursive remedies and the loss of credibility that would go along with such repeated emphasis on poor quality journalism. Ultimately, libel law should not be mistaken for media regulation. No system of private law oriented towards resolving disputes between private parties should be asked to carry such weight. Its time for press self-regulation, or perhaps its big brother, to step up to the plate.
Alastair Mullis is professor of law and head of the School of Law at the University of East Anglia. Andrew Scott is a senior lecturer in the Department of Law at the London School of Economics.
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