I have an article in this week’s Solictiors Journal, calling for whole-scale reform of libel law. In making my case, I find common ground with Nigel Tait of Carter Ruck:
Speaking at an English PEN event on libel, he [Tait] admitted that some proposals for change filled him with “fear and dread”, but he welcomed the idea of a libel tribunal as an alternative to full trial.
“I actually like the idea of the tribunal, the fast track scheme,” said Tait. “If you’ve got it wrong, then… at least you can go to a tribunal and test it. And we would have lots and lots of cases going through our system, instead of the five or six a year which we have at present.” Tait’s firm is often criticised by free speech campaigners, but here we are in agreement: it is surely better to fight libel cases based on truth and meaning, rather than on which side has the most money.
Mine is the first half of a point-counterpoint editoral feature. Rod Dadak of Lewis Silkin LLP provides the alternative argument, saying that effective case management is a more effective route to reform.
The proposals made in the Index/PEN report, which include a radical change of our libel laws, are inappropriate and wholly unnecessary. They would seriously impact on the rights of a libel victim to seek vindication and compensation. Freedom of expression has to be balanced with their rights to have their reputation protected: a responsible media have nothing to fear from our existing libel laws. That said, there is iniquity and abuse in respect of costs and also jurisdiction shopping. It must be addressed. Neither the media nor the claimant should hold all the cards, but Index/PEN are over-egging the argument for reform.
Wholesale change is not the solution, effective case management is.
What is encouraging about this, is that at least Mr Dadak acknowledges the problem. ‘Jurisdiction shopping’ is what is also known as ‘Libel Tourism’, and the issue of spiralling costs is a major obstacle to journalists defending themselves, as the BBC proved earlier this week when it conceded defeat in its legal tussle with Trafigura, over a report on Newsnight about the company’s toxic waste dumping in the Ivory Coast.
I think my reponse to Mr Dadak would be: If effective case management is the answer, then why isn’t it being done already? It is not as if the problem with UK libel laws is a new one: I know Geoffrey Robertson and Anthony Lester, two human rights QC’s who work closely with PEN, have been complaining about the iniquities of libel for literally decades. I would say that it is precisely the failure of the courts to acknowledge the extent of the problem, that has inspired free speech campaigners are now turning to the politicians to sort out the problem.