Libel reforms proposed by the government today should make life easier for responsible journalists and harder for frivolous claimants.
Don't get too excited: the truth defence, although updated, leaves the burden of proof with the journalist. But a new requirement for a claimant to show they have suffered substantial harm as a result of what you have published should make a big difference to journalists' day-to-day work.
Note that this draft bill is just the first stage of a consultation process. Any element may change following this process and as the bill proceeds through parliament. However, there seems to be considerable political impetus behind a move to improve our rights to free speech. Justice Minister, Lord McNally told the Daily Telegraph that the changes could be law by next year, if they government is prepared to allocate sufficient parliamentary time.
1. Having to show 'substantial harm' should stop people bringing trivial libel claims. In practice it makes it less likely you will be caught out by an unexpected suit. In the early years of a new libel law, there will be a succession of cases where courts are asked to interpret the meaning of 'substantial harm' in specific stories. To begin with, we will be operating in a distinctly grey area. But uncertainty over the meaning of 'substantial harm' may also make potential claimants think twice. See Legal Week's take.
2. The truth defence will replace the old justification defence. You will still need to prove the truth of your writing. But if you are challenged over several parts of your story and you are not able to prove they are all true, the defence will not automatically fail. If you can show the main part of your story is true and the other parts only have a minor impact on the claimant's reputation, you should still have a defence.
3. The new defence of responsible publication on matter of public interest exists already in common law (the Reynolds defence) but there are some changes in wording that may be significant. You have a defence if your story is on a matter of public interest and you can show you behaved responsibly. If you report a dispute between the claimant and another person, and you do so fairly, accurately and impartially, you will be treated as having acted responsibly. This would seem to give journalists much more latitude than they have at present. What counts as a dispute will be another grey area in the first few years until the courts rule in specific cases.
4. The existing privilege defence has been extended to many more situations including the reporting of scientific and academic conferences (press conferences are already covered by the privilege defence).
5. The one year time limit on people suing you for libel is currently worthless because web stories are deemed to be republished every time someone downloads them, and each republication counts as a new story. The draft bill changes that to allow a claimant to sue you for a story only once, and only for one year from first publication. This only applies to republishing your own stories in the same form. Rewriting a story (or incorporating a defamatory statement from an old story in a new one) or repeating an allegation made in another publication will still count as a new story and so could be subject to its own libel claim.
6. Other changes include doing away with juries in most cases. Claimants from outside the EU will need to show that the English courts are the best place to hear their claim. There are various changes to the pre-trial process designed to eliminate trivial or vexatious claims more quickly.
7. The government claims that a new defence called honest opinion which replaces fair comment will improve free speech. I am not convinced that it will make a big difference to journalists because there is still a requirement for you to show the facts on which you base opinions are correct. The current proposals do not excuse honest mistakes made in opinion pieces.
What people say about libel reform:
The right to speak freely and debate issues without fear of censure is a vital cornerstone of a democratic society. Ken Clarke, Justice Secretary via BBC
I am particularly delighted that the bill includes a "public interest" defence to strengthen the position of people who raise concerns about malpractice or dangerous products. Roy Greenslade, Guardian
The Government’s welcome proposals could help stem frivolous or abusive threats of libel and prevent powerful interests coming to Britain to shut down criticism and debate. Isabella Sankey, Director of Policy for Liberty
Libel law has more than its fair share of critics and what draws them out is the issue of cost, and I'm afraid this bill has higher costs written all over it. Nigel Tait of Carter-Ruck via Legal Week
The bill if enacted is going to result in considerable pre-trial litigation as the court is asked to consider whether the harm caused by the publication has been substantial, whether a subsequent publication is materially different to an earlier version. Anna Doble, legal director, Wiggin via Legal Week
The government’s draft defamation bill is a big step forward towards ending the practice of libel tourism which has led our Courts to silence free speech around the world. But without action to reduce the cost of a libel trial, reform will protect the free speech of some, but costs will silence others. John Kampfner, Chief Executive of Index on Censorship
The bill will update the law so that, finally, it will reflect the realities of the internet. Nick Clegg in the Guardian
Clinging to antiquated models, sky high costs and the deployment of super-injunctions have been a feature of reputational litigation for too long -- and shame this country’s professed commitment to free speech. Caroline Kean from Wiggin, who represented journalist Tom Bower in his successful libel battle with Richard Desmond, via Press Gazette.