RADICAL REFORM OR A MISSED OPPORTUNITY?

13/07/2011

 

Radical reform or missed opportunity?

 

Watch the debate at this link

 

By Evie Jeffreys

 

As the Government's Defamation Bill has become the main focus for many media lawyers, journalists, bloggers and academics, the question is whether it will make a positive change for Britain's libel laws. This Media Society debate raised the key points where the bill has identified problem areas of the law, but more importantly where it has faltered.

 

In the place of The Rt Hon. John Whittingdale M.P., was ITN’s head of law, John Battle, chairing panellists Simon Singh, Professor Eric Barendt, Mark Stephens and Alastair Brett. While most agreed with some of the Bill’s adjustments to the law, all found areas that it had not covered sufficiently or, in some cases, at all.

 

Areas where all agreed that the Bill is lacking included libel tourism, large corporations suing for defamation, the importance of the right of reply and the sky-high costs of a trial.

 

Simon Singh began the debate with arguments relating to his own situation. The science author and journalist was unsuccessfully sued for libel by the British Chiropractic Association in 2008 – a case which fuelled the Libel Reform Campaign – following an article he had written criticising certain treatments.

 

Though noting that the Bill had extended laws concerning libel tourism, public interest defence and qualified privilege to benefit a wider range of defendants, Simon insisted it had not gone far enough. It was said that despite making the public interest defence accessible to defendants other than just newspapers, the fact remains that it is too strictly interpreted and unreliable to serve as an effective defence, while claiming that qualified privilege had not been made widely available enough, covering academic conferences, though not, to Simon’s disappointment, academic journals. Using fellow academic, Peter Wilmshurst, as an example, he highlighted that despite stricter rules regarding libel tourism, the new Bill would not help British citizens abroad like Wilmshurst, whose case against NMT Medical continued to be used in this context throughout the evening. Simon’s main emphasis rested on further protection of academics and bloggers, who are so often censored or forced to self-censor.

 

Professor Eric Barendt continued by praising the Bill more highly, if only marginally so, agreeing with the attention given to libel tourism and revision of the single publication rule, but listed areas of serious concern. While currently the burden of proof lies entirely with the defendant and goes unmentioned in the bill, Eric maintained that this should be reversed entirely and, as in common law, the claimant should be responsible for showing wrongdoing. It was also pointed out that, aside from the struggle for defendants, the laws, even with the Bill’s revisions, do not offer quick, affordable or effective remedies to claimants.

 

As the most radical advocate for further reform, Mark Stephens dismissed the Bill as completely inadequate, due partly to having been devised by lawyers, many of whom are not au fait with the impact that social media and the Internet are having on our current laws. Supporting further protection of academic debate and investigative journalism, Mark scorned the Bill for not addressing issues such as cost and the ease with which large corporations can sue individuals. In Mark’s opinion the Bill needs to give far greater prominence to the right of reply, meeting speech with speech rather than letting the rich, famous and powerful dominate the courts. Stressing the urgency of reform, he reminded the room of Britain’s reputation as libel capital of the world and the disregard in countries such as the US for decisions made in our courts.

 

An issue somewhat neglected by the Defamation Bill is that of the alarmingly high costs and use of CFAs in libel cases. Andrew Brett, former Legal Director for Times Newspaper Ltd., is the Director of Early Resolution, a not-for-profit company that establishes the meaning of an article and whether it is libellous without resorting to a full libel suit. An observation made by all panellists was that the bulk of a trial is spent deciding the meaning of an article, and if this could only be done before a case reaches the high court, such high costs would not accumulate for either side and wider access to justice could be had. Encouraging the use of Alternative Dispute Resolution in the first instance, Andrew emphasised that libel proceedings are far too complicated and that if there is to be a new bill we must ‘make it radical’ and ‘make it simple’.

 

This was the resounding message of the evening: simple and radical reform. All saw the Government’s Bill as a golden opportunity to make long-awaited reforms to the country’s archaic laws, moving only ‘glacially’, as put by Eric Barendt, up until now. None, however, can back the current Bill, particularly as it may be the only opportunity for the foreseeable future to make a real impact on what are considered to be Britain’s unbalanced laws.

 

Though the panel admittedly comprised of ostensibly pro-reform figures, an excellent case was made for the support a more radical approach to the Defamation Bill.