Libel law to be reformed

Libel law to be reformed

We no longer live in a gentlemen’s club, so let’s reform libel law

David Pannick, QC
Last updated July 15 2010 12:01AM

Last Friday’s debate in the House of Lords on the Defamation Bill ended with a very welcome commitment from Lord McNally on behalf of the Ministry of Justice. The Government will bring forward its own draft Bill on the reform of libel law early next year for pre-legislative scrutiny, with a strong expectation that a Bill will be included in the 2011-12 legislative programme.

Libel lawyers often begin their submissions to a jury by quoting from Ecclesiastes: “A good name smells sweeter than the finest ointment.” But the current state of the law has odorous consequences. The rich and the powerful can prevent or dilute critical comment about their activities by bringing, or threatening, proceedings that would impose a crippling cost on the author or newspaper concerned.

In 1963, Lord Devlin said in a speech in the Appellate Committee of the House of Lords that “a man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done”. The problem is that it can only be done by walking a legal tightrope that imposes a substantial costs bill, even on those who manage to get across without falling off.

The Defamation Bill was introduced by Lord Lester of Herne Hill, QC, who had help in drafting its contents from Sir Brian Neill (a retired Court of Appeal judge), Heather Rogers, QC, and others. It seeks to secure a fairer balance between freedom of expression and the right to protect reputation. It addresses a number of libel rules that are in need of urgent reform.

Clause 1 would codify the defence of responsible publication on matters of public interest. The courts have recognised such a defence but the criteria are confusingly stated in a number of conflicting judgments.

Clause 2 seeks to strengthen the defence of honest opinion (currently known as fair comment). In the Court of Appeal in April, Lord Judge, the Chief Justice, emphasised the importance of such a defence when allowing the appeal of Dr Simon Singh in libel proceedings brought by the British Chiropractic Association: an opinion “may be mistaken, but to allow the party that has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth”.

Clause 10 would remove the rule derived from the Duke of Brunswick’s case in 1849 — no question of Parliament rushing into reform here — that established that each fresh publication of the same material gives rise to a new cause of action with its own limitation period. The rule is a substantial impediment to free speech because newspapers and others who make archive information available on websites are at risk of being sued when material is downloaded, however many years have passed since the original publication.

Clause 11 would require a corporation suing for libel to prove that the publication has caused, or is likely to cause, it substantial financial loss. A corporation has no feelings and it should not be able to sue to recover general damages.

Clause 12 would oblige the court to strike out an action for defamation unless the claimant shows that the publication has caused, or is likely to cause, substantial harm to his or her reputation. The law of libel should no longer be based on the assumption that we all live in a gentlemen’s club where a slight will cause people to be shunned and avoided.

If Clause 12 were enacted we would not see again cases like the claim in which Charlotte Cornwell, the actress, won £11,500 in damages for libel after the television critic of the Sunday People wrote in 1983: “She can’t sing, her bum is too big and she has the sort of stage presence that jams lavatories.” The statement was, as the court found, untrue and unfair.

I prefer the approach of Lord Justice Millett, dissenting in the Court of Appeal in 1996 from the decision of the majority refusing to strike out a libel claim brought by Steven Berkoff, the actor and director, after a Sunday Times journalist described him (unfairly) as “notoriously hideous-looking”. Lord Justice Millett rightly said that “people must be allowed to poke fun at one another without fear of litigation”.

Iago’s plea in Shakespeare’s Othello was that: “He that filches from me my good name/ Robs me of that which not enriches him/ And makes me poor indeed.” The problem is that the Iagos of the 21st century bring or threaten legal proceedings to deter newspapers, publishers and others from commenting on their behaviour. We do not assist the genuine victims of libel by maintaining a system which is slow, expensive and complex. Lord Lester’s Defamation Bill is paving the way to much needed reform.

The author is a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford, and a crossbench peer in the House of Lords

Comment: I predict that if this goes ahead, then it will have implications for Gerry and Kate McCann in that they will no longer be able to silence critics who legitimately question their version of events into the disappearance of Madeleine via Carter Ruck.