Following the Lachaux case at the Supreme Court earlier this week, I wrote an op-ed for Press Gazette on its implications for free speech and press standards.
After a period of uncertainty, the Lachaux judgment returns the section one standard to that applied in Cooke. The publisher’s response to a complaint can really make a difference to the “serious harm” assessment.
I was at the UK Supreme Court yesterday to hear the judgment in Lachaux v. Independent Print Ltd and another. It was a significant challenge to section 1 of the Defamation Act 2013, which long-term readers of this blog will recall was the (successful) end result of English PEN’s Libel Reform Campaign.
Section 1 of the law introduced a test of ‘serious harm’ before a claimant could sue. It was designed to expand the space for free speech by weeding out trivial claims.
A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
The Lachaux case hinged on the semantics of that section of the law. Do the words “has caused or is likely to cause” refer to real world effects, past or future? Or do they just mean that the words have a tendency to cause serious harm to reputation.
Jim Waterson of the Guardianreports a bizarre story of legal reputation managers at Schillings sending threatening letters to booksellers and independent book shops, in an effort to stop them stocking a book about an (allegedly) corrupt banker.
I’m quoted near the end of the story, expressing my dismay:
Robert Sharp of English PEN, the free speech campaign group that co-founded the Libel Reform Campaign, said the decision by Low’s lawyers to target booksellerswas deeply worrying. “This is surprising, concerning and sets a terrible precedent,” he said. He argued that by focussing on the synopses, “the effect of these legal letters is to short-circuit the legal process, by putting booksellers in an impossible position”.
Back in March, I participated in a round-table discussion hosted by the University College London’s Institute of Advanced Studies, on the subject of defamation. I will post my remarks at some point, but for now (primarily because of a media appearance I made today) I wanted to share a remark made by Dr Alex Mills about the state of Facebook Terms & Conditions.
What you have when you look at Facebook’s community standards is a defamation law that you would write on a postcard if you were trying to explain a sort of version of American defamation law to someone who wasn’t a lawyer.
The Scottish Law Commission’s consultation on the law of defamation closes this week. If you want take a stand for free speech in Scotland, then an easy but important thing you can do is co-sign the Libel Reform Campaign’s letter to Lord Pentland, the chair of the commission.
Last month I spoke to the Bookseller about defamation reform, after the incoming president of the Publishers’ Association, Simon Barr, said that it was important that it was important to close the “loophole” caused by the different defamation regimes in England & Wales, Scotland, and Northern Ireland. Long-time readers of this blog will recall that while the Westminster parliament has legislated, the parliaments at Holyrood and Stormont have not yet done so.
There are many reasons to reform defamation, but to my mind the one that should motivate publishers in particular is this:
Another consequence is the possibility legal costs will dent budgets for breaking new authors. “If publishers are spending money on libel, they’re not spending on new stuff,” Sharp said. And the books that get binned, it won’t be the mainstream commercial titles, it’s going to be the experimental stuff – the first time authors, the challenging and the quirky things that are a bit of a risk.”
The Scottish Law Commission has said it will include a review of the defamation law in its ninth programme of reform. That’s fantastic news for those of us in the Libel Reform Campaign who want to ensure that the space for free speech is just as wide in every corner of the United Kingdom.
David Leask at the Daily Heraldreported the story and his article puts the review in context. Yrstrly is actually quoted briefly in the piece, but I prefer this quote from my colleagues at Scottish PEN:
We’re not just campaigning on this to plug a loophole – we’re trying to put in place a structure that supports a healthier media landscape in Scotland.
On Tuesday I was quoted in a Belfast Telegraphreport on the rise of super-injunctions in Northern Ireland. Super-injunctions, you will recall, are those special types of gagging-order where the judge not only stops you from reporting certain facts, but also bars you from even telling anyone you’ve been censored. As a rule of thumb, this tends to be a bad thing. Continue reading “Canaries down the free speech mine”