First posted on OpenDemocracy
The government has responded to grassroots pressure for libel reform, but its proposals do not go far enough towards genuinely safeguarding free speech on the internet and ensuring that powerful corporations cannot silence their critics.
During a panel event on Defamation Reform earlier this year, the lawyer Paul Tweed said that the recent focus on Libel Tourism was the result of “the most successful lobbying campaign since that conducted by the tobacco industry”. Those of us at English PEN, Index on Censorship and Sense About Science who had done some of that lobbying gleefully re-tweeted Tweed’s back-handed compliment.
We’re lobbying for libel reform in the UK because we believe the law is not fit for purpose in the 21st Century. The high cost of fighting an action in the High Court is coupled with a law that seems to prioritise reputation over free expression. The truth of the matter and the harm caused are presumed in favour of the claimant. And because the law has not been updated to reflect the invention of the Internet, each web-page is treated as a ‘publication’ as if it were a book printed in the country where it is read. All this has created the phenomenon of Libel Tourism, where foreign libel claimants take advantage of the English Courts’ claimant-friendly jurisdiction.
I think Paul Tweed was wrong to say this problem is over-hyped. It is true that the number of cases of this type is small, but the precedent they have set has chilled free speech around the world. At present, wealthy companies and oligarchs can merely threaten legal action in London, and see criticisms of them withdrawn by panicked journalists and bloggers. The Government’s new Defamation Bill, currently progressing through Parliament, has welcome measures that explicitly deal with this issue of jurisdiction, which should eradicate the specific threat of Libel Tourism and the associated chill. But I’m getting ahead of myself.
The campaign for reform was galvanised by recent legal attacks on scientists and doctors. Dr Ben Goldacre, Dr Peter Wilmshurst, and Simon Singh were all sued for questioning whether certain medical treatments were effective. Rather than arguing with evidence and data, the pharmaceutical companies and alternative medicine practitioners instead sought to silence criticism through the courts. While this was distressing for the defendants themselves, these cases did at least inspire a grassroots campaign led by scientists, doctors, authors and bloggers, all of whom are angry with a law that prevents genuine democratic debate from taking place.
This approach is far removed from tobacco industry lobbying – we’ve prompted reform through people power, not by injecting money into political campaigns in the hope of nobbling politicians. As the #Leveson inquiry exposes the corrupting influence of lobbying behind closed doors, the Libel Reform Campaign has lobbied the old fashioned way using engaged citizens, not spin doctors. Supporters have written to their MPs and visited them in Parliament. The campaign has been funded by thousands of small donations. Politicians from all parties have, to their credit, engaged with what was seen as quite a dry issue, and made manifesto commitments to reform. This is people power in action.
Unfortunately, the legislation is not as good as it could be. In particular, the public interest defence offered by the Government is merely the codification of an older variant of the Reynolds Defence of Responsible Journalism. As a codification of the common law, it offers some help to large publishers and media outlets with in-house legal teams. The complicated procedures it outlines (including an expectation the editor will solicit comments from those being criticised) are impractical and unreasonable for bloggers and those running discussion forums. They often deal in personal stories and opinions, which are not journalistic reports, yet still valuable contributions to democratic debate.
Opponents of reform are happy with the high hurdles this places on public discussions. But those who have actually been censored, merely for discussing their favourite football team on Owlstalk, or offering child-rearing opinions on Mumset, would beg to differ. We need measures in the Bill that offer better protections to public interest reporting. If a website or a news outlet make a genuine mistake but take steps to correct it quickly, they should be protected from the full force of a libel suit. And if an article raises genuine questions in the public interest, it should be protected unless the aggrieved party shows that the publication was malicious or irresponsible. This fits with our sense of justice and the kind of open, robust society in which we want to live.
The bill offers the first attempt to offer a defence to online secondary publishers, hosts and internet service providers – but it remains one of the most contentious areas and it’s vital to get it right if the bill is going to be fit for the 21st century. A number of politicians have made the mistake of confusing the current obsession with trolls and defamation – there are already laws that offer protection from abuse online which needs to be distinguished from libel. Campaigners would like to see a procedure in place that stops web hosts taking down material for fear of liability, when they are in no position to judge whether the material is defamatory or not. But there’s still much detail to finesse – and the regulations that will underpin the legislation have not yet been published.
The government has also held back on adding any clauses limiting the ability of companies to sue in libel. This is odd, as this precise policy was part of the Liberal Democrat Manifesto, and the Minister responsible for the legislation is Lord McNally, a Lib Dem Peer. It’s a crucial measure to promote free expression, as many of the most shocking libel cases in recent years were brought by companies against individuals. The most egregious of these was the case brought by NMT Medical (a US company) against Sheffield cardiologist Dr Peter Wilmshurst, who exposed serious flaws in the company’s heart implants.
Opponents of this reform claim that companies have reputations too, and they should be allowed to defend them. This is true, but companies have many other avenues to protect that reputation. They can use PR agencies, send out press releases, or resort to other areas of the law like advertising standards, declarations of falsity, and malicious falsehood. The law of libel was created to preserve personal reputation, and its protection as an Article 8 (privacy) right is recognition of a human being’s ‘psychological integrity’ and the real distress that defamation can cause. You cannot upset a corporate body in the same way. They don’t have feelings. It has long been established that political parties and local authorities cannot sue. The principle should be extended to private companies (many of which, by the way, deliver services on behalf of local authorities).
Indeed, corporations are created precisely to protect the human beings who own them. Liability is limited to the amount invested, and the company name shields the reputation of the owners too. When a small business is closely identified with an individual that they become synonymous, then that person could sue as an individual.
It is unfortunate that this measure is not yet in the Defamation Bill. During the Committee stages, it was noteworthy that those arguing against the Bill used hypothetical situations as a way of showing the perils of any kind of reform. Meanwhile, those in favour of reform can point to real life cases (such as those of Simon Singh and Ben Goldacre) where public interest discussions were subjected to incredibly long and costly court battles. Left as they are, the Government’s proposals will do little to alleviate this injustice. The straitjacket on public discourse could remain.
The Defamation Bill contains many sensible measures, but if Lord McNally and his team want to deliver a law that genuinely fit for purpose in a connected, 21st century democracy, they still have work to do.